ESSAYS ON THE CIVIL WAR 
AND RECONSTRUCTION 



AND 



RELATED TOPICS 



BY 

WILLIAM ARCHIBALD DUNNING, Ph.D. 

PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY 



THE MACMILLAN COMPANY 

LONDON: MACMILLAN & CO., Ltd. 
1904 

All rights reserved 






COPTBISHT, 1897, 

By the MACMILLAN COMPANY. 



Set up and electrotyped. Published December, 1897. Reprinted August, 1904. 



^'^y&/s^ 



// 



J. S, Cashing & Co. — Berwick & Smith Co. 
Norwood, Mass., U.S.A. 



CHARLOTTE LOOMIS DUNNING 



PREFATORY NOTE 

Of the essays included in this volume all but 
one — that on "The Process of Reconstruction" 
— have been published before during the last 
eleven years : four in the Political Science Quar- 
terly, one in the Yale Review, and one in the 
" Papers of the American Historical Association." 
For the purpose of their present appearance all 
have been subjected to revision, which has resulted 
in some cases in considerable modifications. The 
first five essays are devoted immediately to various 
phases of the Civil War and Reconstruction. The 
last two, while not concerned exclusively with 
those topics, have nevertheless such a relation to 
the legal and political questions treated as to jus- 
tify their inclusion in the volume. 

To the younger generation of reading men at 
the present day the military history of the Civil 
War is familiar or readily accessible ; the constitu- 
tional and political history is neither. As to the 
Reconstruction, the term is to most people merely 



vm PREFACE 

a synonym for bad government, and conveys no 
idea of the profound problems of statecraft that 
had to be solved between 1865 and 1870. The 
essays collected in the following pages have been 
written with reference to this situation. If in any 
degree they shall have contributed, either through 
statement, implication, or even omission, to throw 
light on the actual history of the time with which 
they deal, the end of the collection will have 
been attained. 

Lake Sunapee, N.H., Sept. 9, 1897. 



NOTE TO THE REVISED EDITION 

For the sake of greater homogeneity and with 
a view to completeness in the general survey of 
Reconstruction, the final essay in the first edition 
has been omitted, and for it has been substituted 
the essay on "The Undoing of Reconstruction," 
which appeared in the Atlantic Monthly in 1901. 

April 14, 1904. 



CONTENTS 

PAGE 

The Constitution of the United States in Civil 

War I 

The Constitution of the United States in Re- 
construction 63 

Military Government during Reconstruction . 136 

The Process of Reconstruction . . . .176 

The Impeachment and Trial of President John- 
son 253 

Are the States Equal under the Constitution? 304 

The Undoing of Reconstruction .... 353 



IX 



THE CONSTITUTION OF THE UNITED 
STATES IN CIVIL WAR 

The culmination of the differences between the 
sections in a definite political act occurred at a 
moment when the government was in the hands 
of that party whose principles were most suscepti- 
ble of adaptation to the policy of the secessionists. 
Though the direct question of state or national 
supremacy was not met in the platform of either 
of the great parties in i860, all the traditions of 
the Democracy were on the side of a strictly lim- 
ited central government. For many years, now, 
the accepted narcotic for quieting any nervous- 
ness caused by threats against state rights had 
been the soothing formula : " Each government 
is sovereign within its sphere." The assertion in 
December of i860 that South Carolina's *' sphere" 
included the right to dissolve the Union, called 
for some decisive action in spherical delimitation. 

President Buchanan had been with the extreme 
Democrats on the Territorial question. The rights 
and equality of all the states he had insisted on 
maintaining with the utmost care. But the de- 
mand that he should acknowledge what after all 
is only the logical conclusion of the state-rights 
B i 



2 THE CONSTITUTION OF THE 

doctrine, was more than he was prepared to accede 
to. His message, on the meeting of Congress in 
December, was a striking illustration of the diffi- 
culty with which all thoughtful Democrats^ were 
confronted by the action of South Carolina./ Any 
such state right as that of secession, he claimed, 
was " wholly inconsistent with the history as well 
as the character of the federal constitution " ; and 
his argument in support of this view contained 
practically all that had ever been said on the sub- 
ject. Still he was far from excluding the idea of 
a " sphere " by which the central government was 
limited. ''This government," the President stated, 
** is a great and powerful government, invested 
with all the attributes of sovereignty over the 
special subjects to which its authority extends." 
Not one man in the United States, probably, 
would have denied that. The whole constitu- 
tional development of the country had proceeded 
upon exactly that doctrine. But the President 
did not penetrate to the root of the difficulty by 
explaining definitely how the scope of those special 
subjects was to be determined. He did indeed 
refer to the wisdom of "the fathers" in adopting 
the rule of strict construction of the constitution ; 
but all the world knew the unsatisfactory nature 
of that formula. No better illustration of its use- 
lessness was needed than the results that were 
derived in the message itself from the application 
of the principle in the present crisis. 



UNITED STATES IN CIVIL WAR 3 

After reaching the conclusion that there was no 
constitutional right in a state to secede, he next 
examined the position of the executive under the 
circumstances. Following an opinion of Attorney- 
General Black,^ he concluded that existing laws 
did not empower him to bring force to bear to 
suppress insurrection in a state " where no judi- 
cial authority exists to issue process, and where 
there is no marshal to execute it, and where, even 
if there were such an officer, the entire population 
would constitute one solid combination to resist 
him." His conclusion itself was reached by an 
exceedingly strict construction of the law of 1795, 
in reference to calling out the militia.^ Having 
thus disclaimed any power in himself to resort to 
arms, he put the question : " Has the constitution 
delegated to Congress the power to coerce a state 
into submission which is attempting to withdraw, 
or has actually withdrawn from the confederacy } " 
Not being able to discover such a power among 
those delegated to Congress in the constitution, 
and not considering it " necessary and proper for 
carrying into execution " the enumerated powers, 
the President could not answer the question in the 
affirmative. "Without descending to particulars," 
he said, " it may be safely asserted that the power 
to make war against a state is at variance with the 
whole spirit and intent of the constitution." 

1 McPherson, History of the Rebellion, p. 51. 

2 I Statutes at Large, 424. 



4 THE CONSTITUTION OF THE 

Such was the rather disheartening result of an 
examination of the situation from a strict-construc- 
tionist standpoint. A state had no right to secede, 
and the federal government had no right to pre- 
vent it from seceding. It was evident that if such 
were the true state of the case, a right must be 
evolved from somewhere to fill the vacuum. Much 
abuse has been heaped upon Mr. Buchanan as the 
originator of this constitutional paradox. Far 
from being responsible for it, however, he was 
only unfortunate in having officially to proclaim 
the disagreeable consequence of a long-established 
theory of governmental relations. The fixed form 
in which for years the doctrine of sovereignty 
had been enunciated by every department of the 
government was that referred to above. The 
relative force of federal and state action, when in 
conflict, was a question that had been sedulously 
avoided. Once only, in 1832, had the issue been 
fairly presented, but the result of the nullification 
controversy had given no conclusive answer. iThe 
Supreme Court had maintained an unbroken line 
of precedents on the double sovereignty basis. ^ 
It had asserted the supremacy of the federal laws, 
so far as they were within the powers granted or 
implied in the constitution, but it had admitted 
that many cases of dispute could arise in which 
the judiciary could not be called upon to give 
judgment. In such questions, of a political rather 

^ Cf. Brightly's Federal Digest, p. 142. 



UNITED STATES IN CIVIL WAR 5 

than a judicial character, the final authority as to 
the constitutionality of a given law was, by the 
doctrine of *' spheres," undetermined. Though 
the ultra state-rights school of Calhoun had given 
a perfectly clear and definite solution to the prob- 
lem, and Webster on the other hand had been 
equally explicit in his contradictory answer, it 
must be admitted that the general course of gov- 
ernmental action, and more important still, per- 
haps, the prevailing sentiment of the people as a 
whole, had followed the middle line of which the 
conservative Madison was a conspicuous adviser. 

From this standpoint the only constitutional 
course in case of a conflict of the " sovereignties " 
was to deny that such a thing was possible, eulo- 
gize the constitution as the greatest extant produc- 
tion of the human intellect, point out the dreadful 
consequences that would follow the recognition of 
supremacy in either claimant, and end by compro- 
mising the difficulty in such a way as to furnish 
precedents for both sides in the future. , It would 
be erroneous to maintain that this method of action 
was as unprofitable as it was illogical. On the con- 
trary, it was probably the only course that could 
have brought the United States intact through to 
the year eighteen hundred and sixty. But more 
than one of the nation's true statesmen foresaw 
that it was only a question of time when " dodging 
the issue " would cease to give satisfaction as a 
principle of constitutional construction, i 



6 THE CONSTITUTION OF THE 

It was not understood by President Buchanan, 
or by the mass of the people, that the secession of 
South Carolina was the knell of the old principle. 
Mr. Buchanan promptly adopted the time-honored 
method of meeting the difficulty. His message in 
December, i860, eulogized the constitution, and 
affirmed the supremacy of the general government 
in its sphere ; he referred with emphasis to the 
reservation of rights to the states, and recoiled 
with horror from the idea of using force to pre- 
serve the Union, even if the power to do so were 
conferred. To Congress was left the devising 
of measures necessary to the circumstances, the 
President's only recommendation being an ex- 
planatory amendment to the constitution. The 
amendment, he thought, should deal not with the 
fundamental question, but with the status of slavery, 
so as forever to " terminate the existing dissensions, 
and restore peace and harmony among the states." ^ 

The executive having thus failed to free itself 
from the shackles which precedent imposed, what 
did Congress effect in the way of meeting the 
emergency .^ In the House a special committee 
of one member from each state was appointed, to 
consider as much of the President's message as 
referred to the perilous state of the country, A 
special committee of thirteen was likewise appointed 
in the Senate. The most casual examination of 
the enormous mass of propositions submitted to 

1 McPherson, History of the Rebellion, p. 50. 



UNITED STATES IN CIVIL WAR 7 

these committees, as well as to the houses directly, 
will reveal the confidence that still remained in 
the '* compromise " method of determining contro- 
versies, as well as the utter hopelessness of its 
successful application to the existing difficulty.^ 

The attention of Congress was directed chiefly 
to such measures as were embodied in the report 
of the House special committee, and in the resolu- 
tions proposed in the Senate by Crittenden of 
Kentucky. The Senate's special committee re- 
ported a failure to agree upon any general scheme 
of adjustment. The only proposition of the 
House committee's report to receive effective ap- 
proval was that proposing an amendment to the 
constitution in these words : ** No amendment 
shall be made to the constitution which will au- 
thorize or give to Congress the power to abolish or 
interfere, within any state, with the domestic in- 
stitutions thereof, including that of persons held to 
labor or service by the laws of said state." This 
proposition secured the necessary two-thirds in 
both the House and the Senate, only the radical 
Republicans opposing it,^ and it was ratified by 
the legislatures of Ohio and Maryland before its 
uselessness was appreciated. 

It was upon the Crittenden resolutions, in the 

1 For digest of the propositions, see McPherson, Rebellion, p. 52 
et seq. Cf. Bancroft, " The Final Efforts at Compromise," in Politi- 
cal Science Quarterly, VI, 401 (September, 1891). 

2 McPherson, Rebellion, p. 59. 



8 THE CONSTITUTION OF THE 

Senate, that the friends of Union through con- 
cihation based their final hopes. The plan was 
directed entirely to a settlement of the slavery 
question. It provided for constitutional amend- 
ments dividing all United States territory by the 
36° 30' line, and recognizing slavery south of the 
line, while prohibiting it north. States formed 
from this territory were to be admitted upon reach- 
ing a population requisite for a member of Con- 
gress, and were to make their own choice as to 
slavery in their constitutions. The power to abol- 
ish slavery within its jurisdiction was denied to 
Congress, if the places concerned should be within 
the limits of states permitting slavery. The inter- 
state slave trade was put beyond the interference 
of Congress, and the United States was required 
to compensate any owner for a fugitive slave vio- 
lently rescued from him, at the same time having 
action to recover the amount from the county in 
which the rescue was effected. Such a scheme 
did not seem to offer much consolation to the 
Republicans, who had made it their cardinal prin- 
ciple that slavery was too horrible a thing to come 
under the express recognition and protection of a 
free government. The resolutions were opposed 
by the united front of the Republican senators, 
and finally, after the withdrawal of most of the 
Southern delegation, they were rejected, on the 
second of March, by a vote of 19 to 20.^ 

1 McPherson, Rebellion, p. 64 et seq. 



UNITED STATES IN CIVIL WAR 9 

The Congress and the administration came to 
an end on the fourth of March, 1861. How did 
the constitutional question stand then ? Had any 
advance been made toward an answer to the vexed 
question of sovereignty ? The record sketched 
above tells the gloomy tale. An emasculated 
national sovereignty had been proclaimed by the 
executive ; a vigorous state sovereignty had been 
actively asserted by seven of the commonwealths 
of the Union ; and no position whatever had been 
assumed by the federal legislature. 



I. Principles of the Appeal to Arms 

It would be misleading to pass without notice 
the idea of executive duty on which Mr, Buchanan 
based his action in reference to the forts and other 
property of the United States in the South. His 
denial of the right of secession precluded, of course, 
any recognition of the independence of the with- 
drawing states. Accordingly, a demand of the 
commissioners from South Carolina for the re- 
moval of a hostile military force from her soil was 
simply disregarded, and no admission was allowed 
of her claim of eminent domain. Attorney-Gen- 
eral Black had advised the President that "the 
right of the general government to preserve itself 
in its whole constitutional vigor by repelling a 
direct and positive aggression upon its property 



10 THE CONSTITUTION OF THE 

or its officers, cannot be denied." ^ The attitude of 
the administration was therefore manifested in its 
orders to the commander of Fort Sumter to stand 
strictly on the defensive, but to act vigorously if 
assailed. 

In his personal defence, written after the war, 
Mr. Buchanan assigns as a reason for maintaining 
this position, that he was above all things desirous 
of avoiding bloodshed, and had high hopes of 
adjusting the difference by negotiation.^ He had 
most convincing assurances that any aggressive 
action on his part would promptly lead to the 
withdrawal of several hesitating states ; and, with 
the slender means at his disposition, he concluded 
that a preservation of the status qno was the most 
feasible as well as the most patriotic plan. It 
must be remembered, however, that Mr. Buchanan 
never abdicated the duty of administering justice 
and collecting the revenue in the seceded states. 
He declared his intention of performing these 
duties as soon as Congress should pass laws req- 
uisite to the novel circumstances. In case of 
action upon this line, armed collision with the 
state power would have resulted from the attempt 
to collect United States taxes. As a matter of fact, 
however, the opening of hostilities was precipitated 
on the issue of defending government property. 

It will be profitable to determine as precisely as 



P 



/ 1 McPherson, Rebellion, p. 52. 

^ ' 2 Mr. Buchanan's Administration on the Eve of Rebellion, ch. ix. 



UNITED STATES IN CIVIL WAR \\ 

possible the theory of the constitution and of gov- 
ernmental relations upon which the exercise of 
force by the new administration proceeded. Mr. 
Lincoln's inaugural address was extremely moder- 
ate in tone. He did not announce any policy dis- 
tinguishable from that of his predecessor. The 
constitutional perpetuity of the Union was his cen- 
tral proposition, /and from this he deduced the 
nullity of all state ordinances of secession, and the 
necessity of enforcing the laws in all the states. 
But while, like Buchanan, Lincoln announced an 
intention to preserve the status quo till time should 
soothe excited passions, one feature of the former 
President's theory was conspicuously absent from 
the inaugural address : the " rjght to coerce a 
state " was not even alluded to. In view of the 
importance that had been ascribed to the search 
for such a right, the omission was significant. 
Under the impulse of actual hostilities, however, 
the contempt of the President for the state-sover- 
eignty doctrine assumed a decidedly aggressive 
form. His message to Congress at the opening 
of the extra session on July 4 contained a severe 
denunciation of the dogma. The time had come 
for assuming a position that should at least be 
clear and intelligible ; and the President planted 
himself unequivocally on the theory of national 
sovereignty. \As his definition of a " sovereignty " 
he accepted this : ** A political community without 
a political superior.", 



12 THE CONSTITUTION OF THE 

Tested by this [he said], no one of our states except Texas 
ever was a sovereignty. And even Texas gave up the char- 
acter on coming into the Union. . . . The states have their 
j/^^/z/jj IN the Union, and they have no other legal j/<2/?A9. . . . 
The Union is older than any of the states, and, in fact, it 
created them as states. Origmally some dependent colonies 
made the Union, and in turn the Union threw off their old 
dependence for them, and made them states, such as they are. 
Not one of them ever had a state constitution independent of 
the Union. 1 

Such were the steps by which Lincoln reached 
his position of national supremacy. If a vote had 
been taken in 1861, in the Northern states alone, 
on the abstract constitutional question at issue, the 
President's view would in all probability have been 
defeated. But so skilfully were the theoretical 
assumptions blended with appeals to the Union 
sentiment of the people, that the whole doctrine 
enunciated in the message was accepted without 
discrimination. The same passion for territory 
which had made popular the extension of the 
boundaries to the 'Pacific, now clamored for the 
maintenance of the domain in its integrity. One 
theory of the constitution could not maintain, it; 
the other could, and the other must be adopted. 

The promptness of Congress in adopting meas- 
ures for enabling the President to carry out his 
doctrine is sufficient evidence that the legislative 
department was one with the executive in his 
views of the constitution. The object of the war 

1 McPherson, Rebellion, p. 127. 



UNITED STATES IN CIVIL WAR 13 

was the subject of numerous resolutions proposed 
in both houses. But the majority showed no dis- 
position to discuss abstractions when actions would 
more clearly proclaim their opinions. Hence, but 
one formal declaration of intention came to a vote. 
This was a resolution to the effect that the war 
forced upon the country by the disunionists of the 
South was 

not waged in any spirit of oppression, or for any purpose of 
conquest or subjugation, or purpose of overthrowing or inter- 
fering with the rights or established institutions of those [the 
Southern] states, but to defend and maintain the supremacy of 
the constitution, and to preserve the Union with all the dig- 
nity, equality and rights of the several states unimpaired. ^^ 

It is beyond question that this declaration ex- 
pressed the feelings of two-thirds of the Northern 
people at this time. The resolution, though not 
passed in joint form, was adopted by both House 
and Senate separately, with no substantial differ- 
ence in the wording. In each case the vote was 
almost unanimous. On its face, the end of the war 
is proclaimed to be, not the overthrow of slavery, 
but the preservation of the Union. In respect to 
the dignity and rights of the states, the expres- 
sion of intention is clearly inconclusive ; for there 
were very widely varying views as to what was 
the extent of such dignity and rights under the 
supreme constitution. Were the rights to be pre- 
served those that were claimed by the state-sover- 

1 McPherson, Rebellion, p. 286. 



14 THE CONSTITUTION OF THE 

eignty politicians, or only such as were conceded 
by the centralizing school ? All that appeared un- 
mistakable was that some form of state organiza- 
tion was to be maintained when the rebellion was 
subdued. 

. But, even without any more definite declaration 
of Congress, it cannot be questioned that the doc- 
trine of sovereignty enunciated by the President's 
message was the doctrine upon which the legisla- 
ture planted itself for the struggle. Whatever 
may have been the defects of the theory, it certainly 
did not lack clearness and consistency. The na- 
tion is sovereign ; the states are local organizations 
subordinate to the nation. The general govern- 
ment represents the nation, and is limited in no 
way by the local state governments, but only by 
the federal constitution. Of this constitution, how- 
ever, the departments of the central government 
are the final interpreters ; the limitations of the 
constitution, therefore, are practically guarded only 
by the mutual responsibility of the departments in 
action, and by the accountability to the people in 
the elections. 

II. The Presidential Dictatorship 

The circumstances in which the government 
found itself after the fall of Sumter were entirely 
unprecedented. The President was o^bliged to re- 
gard the uprising of the South as a simple insur- 



UNITED STATES IN CIVIL WAR 1 5 

rection ; but the only parallel case, the Whiskey 
Insurrection in Washington's administration, was 
so insignificant in comparison, that from the very 
"beginning a system of original construction of the 
constitution had to be employed to meet the varied 
occasions for executive as well as legislative action. 
Long before the end of the war, the principles 
thus evolved had become so numerous and so far- 
reaching in their application, as entirely to over- 
shadow the most cherished doctrines of the old 
system. 

/From the very outset the basis of the govern- 
/ment's war power was held to be the necessity of 
*^preserving the nation* The limit of its application 
was not the clear expressions of the organic law, 
but the forbearance of a distracted people. That 
this forbearance extended so far as it did, is signifi- 
cant. The "necessity" thus sanctioned was not 
the exigency of individual liberty that prompted 
the Declaration of Independen^ce, but the mortal 
peril of a conscious nationality. \ For a third time 
in a hundred years, the conviction of a fact beat 
down the obstacles of established forms. The 
revolution of 1776 secured liberty; that of 1789 
secured federal union ; and that of 1861-67 secured 
national unity.^^ In each case traditional prin- 
ciples wer&'-felt to be incompatible with existing 
facts, and the old gave way to the nev/. The 
question presented to the administration by the 
commencement of hostilities was : Has this gov- 



l6 THE CONSTITUTION OF THE 

ernment the power to preserve its authority over 
all its territory ? The answer of the old school of 
constitutional lawyers was : " Yes, so far as it is 
conferred by the constitution and the laws" ; but 
the answer we derive from the actual conduct of 
the war is " Yes " v/ithout qualification. 

Immediately upon the fall of Sumter, the asser- 
tion of the new doctrine began. Before the assem- 
bling of Congress, July 4, a series of proclamations 
by the President called into play forces deemed 
necessary to the preservation of the nation. The 
calling out of the militia was based upon the law 
of 1795. Buchanan had declined to consider this 
law as applicable to the present circumstances. 
His delicacy, however, was a phase of his scruples 
about coercing a state — scruples entirely foreign 
to his successor. It is enacted by the law in 
question that 

whenever the laws of the United States shall be opposed, or the 
execution thereof obstructed in any state, by combinations 
too powerful to be suppressed by the ordinary course of judicial 
proceedings, or by the powers vested in the marshals by this 
act, it shall be lawful for the President of the United States 
to call forth the militia of such state, or of any other state or 
states, as may be necessary to suppress such combinations, 
and to cause the laws to be duly executed.^ 

Buchanan's interpretation of this was that the 
militia was to be employed only as a posse comi- 

1 I Statutes at Large, 424. 



UNITED STATES IN CIVIL WAR \*J 

tattis to assist in executing a judge's writ.^ While 
this may have been the immediate idea of the 
framer, there was not the remotest allusion to such 
an intent in the law itself, and it was no extraordi- 
nary stretch of construction for Lincoln to act in 
accordance with the plain terms of the statute. 
His proclamation avoided any reference to the 
state governments. 

Four days after the call for militia, the Presi- 
dent's purpose of ignoring the connection of the 
state governments with the rebellion was put to a 
severe test in his proclamation of a blockade of the 
ports of the Cotton States. He was obliged to 
speak of "the pretended authority" of those states, 
but only to declare that persons who, under such 
authority, molested United States vessels would be 
treated as pirates. This assumption by the execu- 
tive of the right to 'establish a blockade was rather 
startling to conservative minds. It seemed like 
a usurpation of the legislative power to declare 
war. For blockade is an incident of actual war- 
fare, and involves the recognition of belligerent 
rights. The constitutionality of the President's 
action, however, was affirmed by the Supreme 
Court in the Prize Cases,^ and hence. Congress 
having acquiesced, it has the sanction of all three 
departments of the government. Accordingl)^ the 
President, as commander-in-chief, can determine, 

1 Attorney-General Black's opinion : McPherson, Rebellion, p. 51. 

2 2 Black, 635. 

c 



1 8 THE CONSTITUTION OF THE 

without reference to Congress, the time when an 
insurrection has attained the proportions of a war, 
with all the consequences to person and property 
that such a decision entails. 

Further action by the President previous to the 
meeting of Congress included a call for the enlist- 
ment of forty thousand three-year volunteers,^ and 
the increase of the regular army by over twenty 
thousand men, and the navy by eighteen thousand. 
Mr. Lincoln himself doubted the constitutionality 
of these measures. 

Whether strictly legal or not [he says, they] were ventured 
upon under what appeared to be a popular demand and a 
public necessity, trusting then as now that Congress would 
readily ratify them. It is believed that nothing has been done 
beyond the constitutional competency of Congress. - 

This frank substitution of a " popular demand " 
for a legal mandate, as a basis for executive action, 
is characteristic of the times. The President's 
course was approved and applauded. Howe, of 
Wisconsin, proclaimed in the Senate that he ap- 
proved it in exact proportion to the extent to which 
it was a violation of the existing law.^ The gen- 
eral concurrence in the avowed ignoring of the 
organic law emphasizes the completeness of the 

1 Under the law of 1795 the term of service of the militia, when 
called out by the President, was limited to one month after the next 
meeting of Congress. 

2 Message of July 4, 1861. McPherson, Rebellion, pp. 125-6. 

3 Globe, 1st sess., 37th Cong., p. 393. 



UNITED STATES IN CIVIL WAR 19 

revolution which was in progress. The idea of 
a government limited by the written instructions 
of a past generation had already begun to grow 
dim in the smoke of battle. 

The remaining subject dealt with in the Presi- 
dent's proclamations was the suspension of the 
writ of habeas corpus. Southern sympathy in 
Maryland had taken so demonstrative a form that 
summary measures of repression were resorted to 
by the government. General Scott was authorized 
by the President to suspend the writ of habeas 
corpus at any point on the military line between 
Philadelphia and Washington. This assertion by 
the executive of an absolute control over the civil 
rights of the individual in regions not in insurrec- 
tion excited rather more criticism than the measures 
which would unpleasantly affect only the rebellious 
states. A case was promptly brought before 
Chief Justice Taney for judicial interpretation. ^ 
Justice Taney's opinion took strong ground against 
the constitutionality of the President's act. The 
clause of the constitution touching the matter says : 
*' The privilege of the writ of Jiabeas corpus shall 
not be suspended, unless when in cases of rebellion 
or invasion the public safety may require it."^ 
The implication is that in the cases mentioned the 
privilege may be suspended, but the clause is silent 

1 The case of John Merryman. For all the proceedings and the 
court's opinion, see McPherson, Rebellion, p. 155. 

2 Art. I, sec. 9, clause 2. 



20 THE CONSTITUTION OF THE 

as to who shall do it. Precedent and authority 
were certainly with the chief justice in regarding 
the determination of the necessity as a function 
of the legislature. But to have awaited the meet- 
ing and action of Congress in the present case 
might have been to sacrifice the government. Lin- 
coln therefore availed himself of the latitude of 
construction possible by the wording of the clause. 
Attorney-General Bates sustained the President 
in an elaborate opinion. His ground was that in 
pursuance of the obligation to execute the laws, 
the President must be accorded the widest discre- 
tion as to means. The use of military force to 
suppress insurrection was authorized by the con- 
stitution, and when such means had been deter- 
mined upon by the executive, all the incidents of 
warlike action must necessarily be included. Nor 
could the judicial department, being a co-ordinate 
and not a superior branch of the government, 
interfere.^ 

The position of the executive in this matter was 
entirely consistent with that assumed in the estab- 
lishment of the blockade. Granting the right in 
the President to decide when war has technically 
begun, both the powers in question spring naturally 
from the recognized authority of the commander- 
in-chief. In the interval between April 12 and 
July 4, 1 86 1, a new principle thus appeared in the 
constitutional system of the United States, namely, 

1 For the opinion, see McPherson, Rebellion, p. 158. 



UNITED STATES IN CIVIL WAR 21 

that of a temporary dictatorship. All the powers 
of government were virtually concentrated in a 
single department, and that the department whose 
energies were directed by the will of a single man. 

The dictatorial position assumed by the Presi- 
dent was effective in the accomplishment of two 
most important results, namely, the preservation 
of the capital and the maintenance of Union senti- 
ment in the wavering border states. These ends 
achieved, the administration of the government 
fell back once more into the old lines of depart- 
mental co-ordination. Congress labored with the 
utmost energy to fill the gaps which the crisis had 
revealed in the laws. Small heed was given to 
the demands of the minority for discussion of the 
great constitutional questions that constantly ap- 
peared. The decisive majorities ^ by which the 
Republicans controlled both houses enabled work 
to be transacted with great vigor. 

The first imperative duty of the legislature was 
to provide for defining the nature and extent of 
the insurrection which the President reported as 
existing. It has been shown how the executive 
had declined to recognize the state organizations 
as elements of the uprising against the general 
government. Congress necessarily adopted the 
same policy. Its measures were made to refer 
primarily to combinations of individuals against 

1 Practically 28 in a Senate of 50, and 92 in a House of 178. 
See Tribune Almanac for 1862, pp. 17 and 19. 



22 THE CONSTITUTION OF THE 

the laws of the United States/ But in the act 
of July 13, 1 86 1, section five, the attitude of the 
state governments toward such combinations was 
taken into consideration as a means of determin- 
ing the location and extent of the insurrection. 
In this section the obligation upon the state au- 
thorities to support the laws of the United States 
was distinctly assumed, and the refusal to fulfil 
this obligation was made a sufficient ground for 
proclaiming all the inhabitants of the delinquent 
community public enemies. The law in question, 
commonly called the ''non-intercourse act,"^ re- 
enacted the main features of the law by which 
President Jackson was empowered to collect the 
duties in nullification times ; the fifth section pro- 
vided further, that when the militia should have 
been called forth by the President to suppress the 
insurrection, 

and the insurgents shall have failed to disperse by the time 
directed by the President, and when said insurgents claim to 
act under the authority of any state or states, and such claim 
is not disclaimed or repudiated by the persons exercising the 
functions of government in such state or states, or in the part 
or parts thereof in which said combination exists, nor such 
insurrection suppressed by said state or states, then and in 
such case it may and shall be lawful for the President, by 
proclamation, to declare that the inhabitants of such state, 
or any section or part thereof, where such insurrection exists, 
are in a state of insurrection against the United States ; 
and thereupon all commercial intercourse by and between the 

1 Public Acts of the 37th Cong., 1st sess., ch. iiL 



UNITED STATES IN CIVIL WAR 23 

same and the citizens thereof and the citizens of the rest of 
the United States shall cease and be unlawful so long as such 
hostiUty shall continue. 

A proclamation in pursuance of the authority 
thus granted was issued by the President on 
August 16. From that time the condition of terri- 
torial civil war legally and constitutionally existed 
in the United States, with all the consequences of 
such a condition which the law of nations recog- 
nizes. Congress had exercised its power to declare 
war, or, what has been admitted to be the same 
thing, to recognize a state of war as existing. 
From the time of such recognition, the acts of 
the President involving technical war powers were 
unquestionably in accordance with the constitution. 



III. The War Power in Relation to Civil Rights 
in the South 

Upon the passage of the ** non-intercourse act," 
both political departments of the government had 
given their recognition to the fact that all the 
inhabitants of certain portions of United States 
territory were at war with the government and its 
loyal supporters. The duty of each department 
thereupon was to use all constitutional means to 
overcome in the shortest time possible the resist- 
ance to their authority. To what extent a strict 
interpretation of the organic law would reveal 



24 THE CONSTITUTION OF THE 

adequate powers, was a question ; but the spirit 
of the people and general ideas of necessity were 
convenient sources of authority that never failed of 
application when the direct mandate of written law 
was lacking. A question that arose immediately 
was in reference to personal and property rights 
of dwellers in the insurrectionary districts. Such 
persons were still, on the theory of the government, 
citizens of the United States ; but were they, as 
such, entitled, under the present circumstances, to 
the protection of their civil rights which is normally 
secured by our system } 

War is the negation of civil rights. Granting 
the power in Congress to designate certain citizens 
as public enemies in the technical sense, the exer- 
cise of that power puts in the hands of the govern- 
ment a control over the life, liberty and property 
of all such citizens, limited only by the dictates of 
humanity and a respect for the practice of nations. 
The insurgents become, in short, belligerent en- 
emies, with the rights and duties which interna- 
tional law ascribes to such. From the moment 
that they assume that character the constitutional 
guarantees of civil liberty lose their effect as 
against the executive. It becomes authorized to 
enforce submission to the laws by bullets, not by 
indictments. "Due process of law" ceases to be 
the necessary condition to a deprivation of civil 
rights. All the safeguards so carefully constructed 
by the constitution for the protection of citizens 



UNITED STATES IN CIVIL WAR 25 

of the United States against oppression by their 
officers and legislators disappear when resistance 
by those citizens to law becomes so formidable as 
to be deemed war. 

Such was the theory upon which the exercise of 
the war power was based by all three departments 
of the government. The Supreme Court, though 
divided, in the Prize Cases, upon the question of 
the exact time when the attitude of belligerency 
could be assumed, was unanimous in respect to 
the consequences after that time had arrived. Jus- 
tice Nelson, dissenting, said : 

There is no doubt the government may, by the compe- 
tent power, recognize or declare the existence of a state of 
civil war, which will draw after it all the consequences and 
rights of war between the contending parties, as in the case of 
a public war. . . . The laws of war, whether the war be civil 
or inte?' ge?ites, convert every citizen of the hostile state into a 
public enemy. 1 

At the outbreak of the insurrection, then, two dis- 
tinct courses lay open for the government to pursue. 
It could elect to repress the uprising by the civil 
power, through process of the courts, with the 
military arm as the marshal's /d^i-j"^/ the insurgents 
then would be subject to the treatment of ordinary 
criminals. Or, on the other hand, the rebels could 
be recognized as belligerents and subdued by the 
exertion of military power alone. In the latter 

1 2 Black, p. 693. 



26 THE CONSTITUTION OF THE 

case, the insurgents would seem to be entitled to 
the treatment which public law secures to armed 
public enemies. But the question early arose, 
could not the government follow both courses at 
the same time, and be guided in its dealings with 
the rebels by international or by constitutional law, 
at its discretion ? Could it not, for example, hang 
as traitors rebels taken in battle as prisoners of 
war ? A practical application of some principle 
was early called for. In the fall of 1861 the crews 
of several Confederate privateers were brought as 
captives to New York, and were tried for piracy. 
The proceeding was in accordance with Mr. 
Lincoln's blockade proclamation, which ended 
with a declaration that rebels molesting United 
States vessels should be thus dealt with. But 
though a conviction was obtained in at least one 
case, the penalty was never enforced, for the reason 
that the Richmond government announced its in- 
tention to visit upon an equal number of prisoners 
in its hands exactly the same treatment that was 
accorded to the Confederates.^ 

The course of the administration in reference 
to the exchange of prisoners and other matters 
was dictated by the same considerations that were 
operative in the case of the privateersmen. It was 
desired to secure all the advantages which flowed 
from the exercise of the war power by the govern- 
ment, while not conceding belligerent rights to 
1 Annual Cyclopedia for 1861, pp. 585, 591. 



UNITED STATES IN CIVIL WAR 2/ 

those against whom that power was employed. 
In respect to life and liberty the practices of inter- 
national war were followed, in order to avoid the 
barbarism of the lex talionis ; though in theory the 
responsibility of the Southerners for their acts to 
the regular courts of law was always maintained. 
As to property, however, the course of the govern- 
ment was not so clearly defined. Measures look- 
ing to extensive if not general confiscation were 
broached early in the war. The basis for such 
a proceeding gave rise to animated controversy, 
and it was in connection with this discussion that 
the fullest light was thrown on the relation of the 
United States government to its citizens in the 
rebel states. 

The first step taken by Congress toward confis- 
cation was the act of August 6, 1861.^ This made 
it the duty of the President to seize, confiscate and 
condemn all property used in aiding, abetting or 
promoting the present or any future insurrection 
against the government of the United States. 
Section four provided for the forfeiture of slaves 
employed in any military or naval service against 
the government and authority of the United States. 
This act was passed by virtue of the war powers 
of Congress. It was a legislative authorization for 
the exercise of an acknowledged belligerent right. 
For the purpose of freeing the slaves, the ultra 
anti-slavery men were perfectly willing to sacrifice 

1 Public Acts of the 37th Cong., ist sess., ch. Ix. 



28 THE CONSTITUTION OF THE 

their old scruples about regarding men as property, 
and the provision on this subject was defended on 
the same ground as the rest of the bill. 

This first act was somewhat crude and unsatis- 
factory in detail, but was in principle quite definite 
and distinct. War had been recognized as exist- 
ing, and Congress had exercised the constitutional 
power of making ''rules concerning captures on 
land and water." But during the next session of 
the Thirty-seventh Congress, the full development 
of the war gave rise to a more bitter spirit, which 
manifested itself in more radical and questionable 
measures. Many propositions looking to confisca- 
tion and emancipation were brought forward in 
both houses, and the debates upon these subjects 
were long and acrid. The dominant party became 
quite distinctly divided on the general policy of the 
war; and, behind all, the idea of finding in the 
existing crisis a definite settlement of the slavery 
question assumed a steadily increasing importance. 

When it had been determined that the crimes 
of the secessionists called for vindictive punish- 
ment, serious constitutional difficulties were found 
to beset the path of the avengers. The House 
first passed a bill which surmounted all obstacles 
with gratifying ease. It simply provided that all 
property of whatever description, belonging to cer- 
tain described classes of persons, was forfeited to 
the government of the United States, and declared 
lawful subject of seizure and of condemnation. 



UNITED STATES IN CIVIL WAR 29 

The judiciary committee of the Senate, to whom 
this and other bills were referred, recognized some 
of the objections that could be raised to the House 
proposition, and so reported a modification of it. 
By this it was enacted that the forfeiture should 
take effect only upon the property of persons 
"beyond the jurisdiction of the United States," or 
of persons in any state or district of the United 
States where, on account of insurrection or rebel- 
lion, the ordinary judicial process could not be 
served upon them ; and the title to the property 
was to vest in the United States immediately 
upon the commission of the act, so that any sub- 
sequent alienation by the former owner would be 
void. 

The objections raised against both these bills, 
on principles of both constitutional and interna- 
tional law, were very strong, and after long debates 
proved effective to prevent the passage of either. 
But a compromise bill, patched up from the many 
propositions that had been submitted during the 
discussion, became at last the law.^ The first 
four sections fixed very severe penalties for the 
crimes of treason and rebellion, the latter being an 
addition to the catalogue of felonies. These pro- 
visions followed the suggestions of the more con- 
servative Republicans, like Collamer, of Vermont, 
who expressed a strong desire to get at the prop- 
erty of the rebels, but insisted upon doing it by 

1 Public Acts of the 37th Cong., 2d sess., ch. cxcv. 



30 THE CONSTITUTION OF THE 

regular judicial procedure.^ Sections five, six, 
seven and eight referred to confiscation proper. 
The President was directed to cause the seizure of 
all the property, of whatsoever kind, belonging to 
specified classes of persons, namely, officers of the 
rebel army or navy, officers of the civil administra- 
tion of the so-called Confederate States, governors, 
judges or legislators of any of said states, ex-offi- 
cials of the United States hereafter holding office 
under the Confederate States, and persons owning 
property in loyal states who should give aid and 
comfort to the rebellion. Further, if any other 
persons, being engaged in the rebellion, or giving 
it aid and comfort, should not cease within sixty 
days of a proclamation to be issued by the Presi- 
dent, such person's property should be liable to 
seizure in like manner. The property so seized 
was to be proceeded against by action in rem in 
the United States courts, and condemned and sold 
as enemies' property, and the proceeds were to be 
used for the support of the army of the United 
States. 

This act assumed the power in Congress to 
deprive several millions of persons of all their 
property, and this by simple legislative act. By 
the theory of our constitution, such power must 
be granted by the organic law, or be inferable 
from some clearly granted power. There was 
no claim of an express grant. By implication, 

1 Globe, 2d sess., 37th Cong., p. 181 2. 



UNITED STATES IN CIVIL WAR 31 

the power was held to be deducible from the 
clauses authorizing Congress ''to declare war," 
" to make rules concerning captures on land and 
water," "to provide for calling forth the militia to 
. . . suppress insurrections," and finally, '' to make 
all laws which shall be necessary and proper for 
carrying into execution the foregoing powers." 
On the other hand, the constitution contains the 
following prohibitions : '* No bill of attainder . . . 
shall be passed;" "no person shall be . . . de- 
prived of . . . property, without due process of 
law ; nor shall private property be taken for pub- 
lic use without just compensation ; " and finally, 
" no attainder of treason shall w^ork . . . forfeiture 
except during the life of the person attainted." 
The exercise of authority under the grants above 
enumerated involved of necessity the violation of 
these prohibitions. Respect for both at the same 
time was inconceivable. The only escape from 
the dilemma was to assume that the constitution 
contemplated a state of affairs to which the pro- 
hibitions were inapplicable. And that indeed was 
the position taken by the advocates of confiscation. 
The existence of a state of war was held to bring 
into the sphere of legislative action any measures 
necessary to weaken the enemy that were recog- 
nized by the great system of international practice. 
International law thus was set up as the source 
of Congress' power. But in the modern practice 
of civilized nations the general confiscation of 



32 THE CONSTITUTION OF THE 

enemies' private property is unknown. It is as 
obsolete as the poisoning of wells in an enemy's 
country. As a rule, real estate is left to its owners, 
and movables are appropriated only so far as mili- 
tary necessity, as judged by the commander in the 
field, seems to demand it.^ Some vague idea of 
such a justification seems to have suggested the 
clause devoting the proceeds of the confiscations 
to the support of the army. But it was rightly 
argued that the determination of the army's neces- 
sities was a function of the President, and not of 
Congress, and that legislation in such a case was 
superfluous. 2 The justification of the Confiscation 
Act by international law thus was no less difficult 
than by constitutional law pure and simple. Only 
as an abstract right of war, independent of all 
convention and precedent, could the proceedings 
contemplated by the act be consistently defended. 
It appeared, however, from further develop- 
ments, that the act was not based upon the war 
power alone. After it had been sent to the Presi- 
dent for approval, it became known that he pro- 
posed to veto it. His objections were ascertained, 
and an explanatory resolution was hurriedly adopted 
to meet his views.^ Its most important provision 
was that no punishment or proceedings under the 
act should "be so construed as to work a forfeiture 

1 Halleck, International Law, pp. 456, 457, and authorities cited. 
^ Cf. Lincoln's message, McPherson, Rebellion, p. 198. 
8 Public Resolutions, 2d sess., 37th Cong., no. 63. 



UNITED STATES IN CIVIL WAR 33 

of the real estate of the offender beyond his natu- 
ral life." This was an effort to reconcile the act 
with the prohibition in the constitution against for- 
feiture for treason ; the futility of the effort ap- 
peared from the fact that the forfeiture contem- 
plated by the act was in no sense the result of an 
attainder of treason. Attainder of treason does 
not result from a proceeding in rem, but from 
conviction in a criminal proceeding in personam} 
The effect of the resolution, therefore, was simply 
to impair the utility of the act, while in no way 
affecting the constitutional question. ^ 

Again, it was maintained that the action in rem 
provided for in the act was such " due process of 
law" as the constitution contemplates in the de- 
privation of property. This construction, however, 
is wholly contrary to the spirit of the bill of rights. 
The theory of the action in rem is that the "thing" 
is an instrument, a necessary participant, as it 
were, in the violation of some law. The provision 
of the constitution refers to criminal procedure 
against the person, and to apply it in other cases is 
mere distortion of the organic law. Any attempt 
to reconcile the act with the guarantee of civil 
rights leads to absurdities. Such was^ the con- 

1 Cooley, Constitutional Limitations, 4th ed., p. 317. 

2 As illustrating the struggles of the courts in construing the act, 
see decisions of District Judges Betts and Underwood, and others, 
collected in the Annual Cyclopedia for 1862-64, under the title 
" Confiscation." 



34 THE CONSTITUTION OF THE 

sistent position taken by the radical advocates of 
confiscation, and such is the only position justified 
by the logic of facts. 

But very important results are secured by pur- 
suing further the line of argument adopted by the 
radicals. The benefits of the constitution must 
be denied to those who refuse to recognize its 
authority. Such denial, however, does not re- 
lieve the offenders of their responsibilities under 
the fundamental law. Circumstances may force 
the government to regard certain citizens of the 
United States as enemies engaged in war. In 
such a state of affairs, many provisions of the 
constitution become inoperative. In other words, 
since the government itself is the judge of the cir- 
cumstances, the government may suspend certain 
parts of the organic law. But not only that. The 
suspension of the constitution is not absolute. 
While the right of jury trial, for example, may be 
denied under the authority of Congress, it may 
also be allowed. A man's property may be seized 
by virtue of the war power, but at the same time 
the man himself may be tried and hung for trea- 
son under the regular civil procedure. *' We may 
treat them [the rebels] as traitors, and we may 
treat them as enemies," said Senator Trumbull, 
" and we have the right of both belligerent and 
sovereign, so far as they are concerned."^ Such 
is undoubtedly the theory to be deduced from all 

1 Globe, 2d sess., 37th Cong , p. 943. 



UNITED STATES IN CIVIL WAR 35 

the circumstances of the government's action in 
reference to confiscation. 

Sections nine to twelve of the Confiscation Act 
had reference to negroes. Slaves of persons en- 
gaged in rebellion against the government of the 
United States, coming into the lines of the army, 
or captured from their masters, or found in places 
once occupied by rebel forces, were declared free. 
Fugitive slaves were not to be given up except to 
such owners as would declare under oath that they 
had not borne arms against the United States in 
the present rebellion, or given aid and comfort 
thereto. The President was authorized to employ 
negroes in suppressing the rebellion, and also to 
make provision for the colonization of the freed- 
men in some foreign country. 

The treatment of the negro question was freely 
admitted by all the friends of the confiscation bill 
to be a very important, and was asserted by some 
to be the most important, feature of the act. Vex- 
atious complications had arisen in disposing of the 
fugitive slaves that could not be kept from coming 
within the lines of the army. The President's pa- 
tience had been severely tried in his efforts to re- 
strain the ardent abolition spirit of some of his 
generals.^ While he looked forward to the pos- 
sibility of a situation in which military necessity 
would justify emancipation, yet he considered the 

1 Especially Fremont and Hunter. See McPherson, Rebellion, 
pp. 247, 251. 



36 THE CONSTITUTION OF THE 

political horizon, especially in the border states, 
too threatening to permit precipitate action. But 
the radicals in his party denounced his hesitation 
as pusillanimous, and were only too ready to at- 
tain their end through the legislative department. 
Confiscation seemed an easy and suitable path by 
which to penetrate the stronghold of slavery. By 
the act of August 6, 1861, slaves used for the pur- 
poses of the insurrection had been declared free. 
The principle was that, under such circumstances, 
slaves were contraband of war. But the basis of 
the later law was the right to free a man's slaves 
as a penalty for the master's participation in the 
rebellion. There was no essential distinction be- 
tween the right of Congress to confiscate choses ijt 
actio7i and its right to take from the rebel his 
claim to the services of a negro. The institution 
of slavery was not touched, and the peculiar .signifi- 
cance of these provisions lay in the fact that they 
were dictated by a sentiment in the North that 
would not long be satisfied with such moderate 
measures. 

By the Confiscation Act and the discussions inci- 
dent to its consideration, the attitude and powers 
of the United States government in respect to 
such of its citizens as were proclaimed public 
enemies were more or less satisfactorily deter- 
mined. In the struggle between those who up- 
held the restraints of the constitution and those 
who considered only the limits of international law, 



UNITED STATES IN CIVIL WAR 37 

the government practically escaped all restrictions 
whatsoever. Side by side with the doctrine that 
all means looking to success in the war could be 
employed against insurgent citizens, developed the 
principle that a like absence of limitation charac- 
terized the relations of the government to citizens 
who were not public enemies. It was in connec- 
tion with the civil rights of citizens in the loyal 
states that a far-reaching conception of the war 
power attained most distinct definition. 

IV. The War Power ift Relatio7i to Civil Rights 
in the North 

The question as to the extent of the govern- 
ment's authority over the life, liberty and property 
of the individual in states not in insurrection was 
complicated by the controversy over the proper 
department for exercising such authority. It has 
already been stated ^ that the action of the Presi- 
dent in suspending the writ of habeas corpus of his 
own accord in 1861 had excited a discussion of his 
right to do it, and that Chief Justice Taney had 
given an opinion against the right. The impotence 
of the judiciary as against the executive, and the 
neglect of Congress to take any action on the 
matter, had left the administration in a position to 
realize its own ideas of its powers. Arrests of dis- 
affected persons and Southern sympathizers under 

1 Sufra, p. 19. 



38 THE CONSTITUTION OF THE 

secret orders from Washington had gone on with- 
out ceasing, and in no case was the service of the 
great writ allowed. Not only in Maryland, and 
the regions near the seat of war, but in the most 
distant parts of the land, from Maine to California, 
men were seized without any information as to the 
charges against them, and were confined in forts 
and prison camps. It was not denied by the 
friends of the policy that frightful injustice was 
often done, but that fact was rightly held to have 
no bearing on the question of power involved. If 
the constitution of the United States vested in the 
executive, in time of war, absolute discretion as 
to the means to be employed to carry on the war, 
whatever evils resulted from the exercise of this 
discretion must only be added to the aggregate of 
misery of which a resort to arms is the cause, and 
so must be regretted, but sternly endured. 

For a year and a half after the beginning of 
the war the arrest and detention of citizens as 
" prisoners of state " went on without any formal 
announcement as to the principles of the pro- 
ceedings. Only when, in the autumn of 1862, a 
draft had become necessary to recruit the army, 
were the government's operations put upon a well- 
defined basis. On September 24, a proclamation 
was issued by the President,^ ordering, first, that 
as a necessary measure for suppressing the exist- 
ing insurrection, all persons " discouraging volun- 

1 McPherson, Rebellion, p. 177. 



UNITED STATES IN CIVIL WAR 39 

teer enlistments, resisting military drafts, or guilty 
of any disloyal practice^ affording aid and comfort 
to the rebels," should be subject to martial law, and 
liable to trial by courts-martial or military commis- 
sions ; and second, that the writ of habeas corptis 
should be suspended in respect to all persons ar- 
rested or held by military authority. In this paper 
the President formally assumed the right to pro- 
claim martial law and to suspend the writ of habeas 
corpus at his own discretion throughout the United 
States. On this assumption the power both to 
arrest and to detain a citizen — and, indeed, to put 
him to death — was complete. 

The basis of this proclamation is to be found in 
the apparently unimportant phrase with which the 
orders are introduced. The whole proceeding is 
*' a necessary measure " of war. Granting that 
the oath to "• protect and defend the constitution," 
and the mandate to '' take care that the laws be 
faithfully executed," confer unlimited discretion 
as to means, nothing can be said against the legal- 
ity of the President's orders. But on any other 
theory, it would be hard to justify them. The 
fourth article of the amendments to the constitu- 
tion guarantees the security of the people in their 
persons against unreasonable seizures, and indi- 
cates that arrests are to be made through special 
warrants. On the theory under which the Presi- 
dent acted in ordering arrests by military authority, 
this article of the constitution has no application 



40 THE CONSTITUTION OF THE 

to times of civil war.^ It " speaks in reference to 
the normal condition of the country only." When 
war exists, the President has the right to arrest 
and detain on his own motion ; the Fifth Amend- 
ment, which forbids the holding of any one unless 
on action of a grand jury, loses its force under 
such circumstances. As the policy of confiscation 
had been based on the nullity of constitutional 
restrictions as to the legislature, so the policy of 
military arrests was based on the nullity of those 
restrictions as to the executive. 

The proclamation of September 24, 1862, consti- 
tuted a perfect platform for a military despotism. 
The growing prominence of the emancipation 
policy during this year had dampened the enthusi- 
asm of the Northern masses for the war, and in 
connection with the drafts the opposition to the 
government grew very demonstrative. But this 
only tended to make military arrests more fre- 
quent. As a result the widespread discontent 
with the administration's policy received addi- 
tional stimulus, and the Congressional and state 
elections of 1862 were disastrous to the dominant 
party. Some action by the legislature then be- 
came imperative. Bills touching the subject were 
promptly taken up by Congress when it met in 
December, but the discussions were so violent that 

1 Binney, The Privilege of the Writ of Habeas Corpus (2d ed., 
Philadelphia, 1862), p. 55; Whiting, War Powers under the Consti- 
tution, p. 176. 



UNITED STATES IN CIVIL WAR 4 1 

no result was reached till just at the close of the 
session. 

The interpretation of the clause of the consti- 
tution relating to the suspension of the writ of 
habeas corpus, was not, however, definitely decided 
even then. It was admitted on all sides that the 
general impression, from the foundation of the gov- 
ernment, had been that the power of suspension 
was in Congress. The insertion of the clause in 
the article relating to Congress indicates that such 
was the idea of the committee on style and re- 
vision in the convention. As first presented to 
the convention and referred to the committee of 
detail, the clause contained the words " by the 
legislature." 1 Tucker's Blackstone and Story's 
Commentaries assume without discussion that Con- 
gress alone can suspend the writ. The Supreme 
Court indicated such an opinion in Bollman and 
Swartwout.2 And especially significant of the 
early idea is the fact that when, in 1807, a bill 
was proposed suspending the writ in connection 
with Burr's conspiracy, a long and violent debate 
in the House disclosed not the slightest intimation 
that any one suspected that the power was in the 
President.^ The action of Mr. Lincoln's adminis- 
tration, however, had been justified by opinions 
from eminent lawyers, and officially by that of 
the attorney-general. The grounds on which these 

1 Elliot's Debates, V. 445. - 4 Cranch, 75. 

« Annals of Congress, 2d sess., 9th Cong., p. 402 et seq. 



42 THE CONSTITUTION OF THE 

views were based were generally technical rather 
than historical, and arguments were deduced from 
the circumstances and necessities of the present 
rather than from respect for the past. 

Congress devoted itself to a course of proced- 
ure based upon a recognition of matters as they 
stood. The act of March 3, 1863,^ first author- 
ized the President, during the rebellion, to sus- 
pend the privilege of the great writ "in any 
case throughout the United States, or any part 
thereof." It then provided for the discharge of 
such persons as were in duress, upon failure of 
the grand jury to indict them, and for the judi- 
cial examination within twenty days of all persons 
hereafter arrested under orders of the adminis- 
tration. To check the torrent of prosecutions 
for malicious imprisonment that was threatening 
United States officers everywhere, it was enacted 
that the order of the President should be a suffi- 
cient defence in any such action. In other words, 
Congress declined to say whether or not the ad- 
ministration had acted illegally, but went so far 
as to protect it from any consequences if it had so 
acted. Provision was also made for the removal 
pf all suits arising out of acts done under execu- 
tive authority, from the state to the federal courts. 

So far as concerned the past course of the ad- 
ministration, Congress undoubtedly took the wisest 
steps possible under the circumstances. Indem- 

1 Public Acts, 3d sess., 37th Cong., ch. Ixxxi. 



UNITED STATES IN CIVIL WAR 43 

nifying the executive officers against suits for 
damages was a concession to the view that the 
President was correct in assuming the right to 
arrest and hold suspected persons ; while the 
authorization to suspend the writ indicated that 
the power to suspend was in Congress. The only- 
constitutional principle that can be deduced from 
the act as a whole is that the President may in 
an emergency exercise the right to arrest and de- 
tain individuals until Congress acts. 

In pursuance of the authority of this act, Mr. 
Lincoln proclaimed a general suspension of the 
privilege of the writ of habeas corpus on Septem- 
ber 15, 1863. The effect of the suspension was 
limited to persons held as "prisoners of war, 
spies, or aiders or abettors of the enemy," and 
such as were amenable to the Articles of War. 
How elastic these limits were may be judged by 
the interpretation put upon ''aiders and abettors." 

He is a public enemy who seeks falsely to exalt the mo- 
tives, character and capacity of armed traitors, to magnify 
their resources, etc. He who overrates the success ... of 
our adversaries, or underrates our own, and he who seeks 
false causes of complaint against the officers of our govern- 
ment, or inflames party spirit among ourselves, gives to the 
enemy that moral support which is more valuable to them 
than regiments of soldiers, or millions of dollars.^ 

With such perfect facilities afforded by law, it 
is scarcely to be wondered at that in many cases 

1 Whiting, War Powers, p. 197. 



44 



THE CONSTITUTION OF THE 



the practical construction of the proclamation was 
the arrest of anybody who expressed dissatisfac- 
tion with the administration. The boundary line 
between political opposition to the President and 
treason became extremely hazy in the eyes of the 
President's agents. 

In addition to the free exercise of the right 
arbitrarily to arrest and hold citizens by military 
authority, the practice grew up, early in the war, 
of bringing arrested persons before military com- 
missions and passing sentence upon them after 
summary proceedings of a qiiasi-]\!i^\z\2X char- 
acter. By the President's proclamation of Sep- 
tember 24, 1862, all rebels and insurgents, and 
their aiders and abettors, and all disloyal per- 
sons generally, were declared subject to trial by 
court-martial or military commission. The latter 
organization had no legal existence in the United 
States when the President thus conferred juris- 
diction upon it. Its actual power, however, be- 
came unmistakably manifest. It is to be noticed 
that with the recognition of the military commis- 
sion a complete judicial system existed outside of 
the ordinary civil and criminal courts. The whole 
process of arresting, trying, convicting and execut- 
ing a man could be carried through without any 
recourse to the constitutional judiciary, and with 
no security whatever against the arbitrary will of 
the military commander. Such a state of things 
was held to be the necessary consequence of a 



UNITED STATES IN CIVIL WAR 45 

rebellion which called for the exercise of the war 
power. 

The Habeas Corpus Act of 1863 provided for the 
trial of all political prisoners by the civil authority, 
and thus seemed to cut off from the military courts 
the jurisdiction over civilians. But in spite of this 
the application of martial law continued in all the 
Northern states. Efforts to secure a judgment of 
the civil judiciary upon the validity of the extraor- 
dinary tribunals all proved ineffectual till after the 
war had ended. Then, in 1866, in the case of Ex 
parte Milligan,^ the Supreme Court determined 
their relation to the constitution. 

According to United States army orders, the 
military commissions were to administer the "com- 
mon law of war," or, in other words, to execute 
martial, as distinct from military, law.^ In assum- 
ing the right to try citizens of loyal states by purely 
military procedure, Mr. Lincoln asserted the exist- 
ence of martial law, in its most unlimited sense, 
throughout the whole United States. Martial law 
is well understood to be practically no law — 
merely the unregulated will of a military com- 
mander, sanctioned by physical force. ^ Under its 
sway the whole machinery of civil justice dis- 
appears. The exigencies of active warfare bring 

1 4 Wall. 2. 

2 Ex parte Vallandigham, i Wall. 249; Ex parte Milligan, 
4 Wall. 142. 

^ See Garfield's argument, 4 Wall. 47. 



46 THE CONSTITUTION OF THE 

the theatre of actual army operations into this 
condition by the very nature of the case. But 
the question raised by the President's action was 
whether there could be a constructive exigency of 
this sort — whether martial law could supersede 
civil law, not by the actual presence of contending 
forces and the actual destruction of the civil ad- 
ministration, but by the opinion of either the Presi- 
dent or Congress that the necessity existed which 
would justify the supersession. It cannot be de- 
nied that the war was carried through on the latter 
theory. The records of the War Department con- 
tain the reports of hundreds of trials by military 
commissions, with punishments varying from light 
fines to banishment and death. ^ Congress, more- 
over, asserted its control over the subject by indem- 
nifying officers against prosecutions for acts done 
under the President's orders organizing the com- 
missions.2 It further gave legal sanction to the 
miUtary tribunals in the Reconstruction Acts, 
though here there was a doubt as to whether the 
status of the region was that of peace or of war.^ 
But the judgment of the Supreme Court in Mil- 
ligan's case was a clear and explicit denial of any 
power in either executive or legislative department 
to suspend the operation of the laws protecting 

1 Digest of Opinions of the Judge Advocate General, p. 334. 

2 Act of iMay 11, 1866. 

8 See opinion of Attorney-General Hoar : McPherson, Recon- 
struction, p. 477. 



\ 



UNITED STATES IN CIVIL WAR 47 

civil liberty. In the first place it was held that 
the suspension of the privilege of the writ of ha- 
beas corpus did not establish martial law, as had 
been claimed by the executive. That act merely 
shuts off for the time civil inquiry into the reasons 
for military arrests. As to the main question, the 
government claimed : 

When war exists, foreign or domestic, and the country is 
subdivided into military departments for mere convenience, 
the commander of one of them can, if he chooses, within 
his limits, on the plea of necessity, with the approval of the 
executive, substitute military force for and to the exclusion of 
the lawjs, and punish all persons as he thinks right and proper, 
without fixed or certain rules. 

The necessities of the service, it was argued, re- 
quired the division of the loyal states into military 
districts ; this, in a military sense, constituted them 
the theatre of military operations and therefore 
brought them under the authority of the com- 
mander. This conclusion the court flatly rejected, 
and sought some palpable objective fact that should 
alone justify the existence of arbitrary rule. This 
was found in the condition of the courts of justice. 

Martial law cannot arise from a threatened invasion. The 
necessity must be actual and present ; the invasion real, such 
as effectually closes the courts and deposes the civil adminis- 
tration. . . . Martial rule can never exist where the courts 
are open, and in the proper and unobstructed exercise of their 
jurisdiction. 



48 THE CONSTITUTION OF THE 

The safeguards thrown about the liberty of the in- 
dividual by the constitution could be disturbed by 
neither President, nor Congress, nor the judiciary, 
except so far as concerned the writ of habeas 
corpus. Physical force alone could override the 
organic law. 

The opinion of the court was dissented from by 
four of the justices on a single point, namely, the 
denial of the power in Congress to declare martial 
law. That this power was in the legislature, 
though not exercised during the war, was deduced 
by the minority from the authorization to make 
rules for the army and navy, in connection with the 
exception in the Fifth Amendment, of " cases aris- 
ing in the land and naval forces, or in the militia 
in actual service in time of war or public danger." ^ 

The action of the political departments is in 
direct contradiction of the judiciary on this vital 
question of the war power. The whole subject of 
extraordinary authority is involved in the deter- 
mination of such a case as that of Milligan. To 
maintain that the framers of the constitution con- 
templated vesting in any man or body of men the 
discretionary right to set aside any of its pro- 
visions, seems too much like judging the past in 
the light of the present. To believe that the nation 
could have been preserved without the exercise of 
such a discretionary power, involves too severe a 
strain upon the reasoning faculties of the careful 

i 4 Wall. 137. 



UNITED STATES IN CIVIL WAR 49 

student of the times. Two methods may be sug- 
gested of reaching a satisfactory conclusion on the 
question : either to consider that the war wrought 
a great modification in the canons of interpretation 
applicable to the organic law ; or to recognize the 
fact that in the throes of the rebellion a new and 
adequate constitution developed out of the ruins 
of the old. 

V. The War Power and the Slaves 

All the circumstances connected with the origin 
of the war conspired to render the attitude of the 
government toward slavery the most delicate prob- 
lem with which the administration had to deal. 
From the first contact of the Northern armies with 
Southern soil, questions arose that increased daily 
in both number and perplexity. Many slaves 
came into the control of the army, either through 
flight or by capture, and the generals pursued 
various policies as to the disposition to be made 
of the blacks. The device of the astute Butler, 
to seize them as contraband of war and then to 
set them free, was readily adopted in many quar- 
ters ; but for months the condition of affairs in the 
border states caused the President to discounte- 
nance any procedure which would strengthen the 
idea that the war was becoming an anti-slavery 
crusade. Generals Fremont and Hunter were re- 
pressed with considerable abruptness when they 



50 



THE CONSTITUTION OF THE 



undertook to apply a policy of emancipation in 
their respective departments, and Mr. Lincoln 
announced that he reserved to himself, as com- 
mander-in-chief, the exercise of whatever power 
was necessary in connection with this subject. 

Meanwhile the abolition sentiment was rapidly 
gaining strength in the North, and with the grow- 
ing sense of the meaning of war power the idea of 
general emancipation by military authority became 
increasingly attractive. President Lincoln long 
withstood the pressure that was put upon him to 
adopt this idea. He had grave doubts both as to 
his power in the premises and as to the wisdom 
of the policy. Eventually he gave way, and the 
Emancipation Proclamation was the result. The 
significance of this famous paper is generally mis- 
understood. As indicating the definitive adoption 
by the executive of a radical policy on a vital issue, 
the proclamation was of the highest importance ; 
but it did not strike the shackles from a single slave. 
The proclamation did indeed declare the slaves in 
certain districts free : but as these districts were 
carefully defined so as to include only such as were 
under control of the Confederates, there could be 
no claim that the slaves therein were free in fact ; 
and the basis of the proclamation was so formu- 
lated as entirely to preclude the contention that 
they were free in law. Mr. Lincoln gave as his 
authority for the proclamation " the power in me 
vested as commander-in-chief of the army and navy 



UNITED STATES IN CIVIL WAR 51 

of the United States, in time of actual armed rebel- 
lion against the authority and government of the 
United States"; and he described the act as "a 
fit and necessary war measure for suppressing said 
rebellion," and as "warranted by the constitution 
upon military necessity." These expressions give 
to the paper the character of a military decree, 
pure and simple. The calling up or setting free 
of the enemy's slaves was both in theory and by 
precedent an incident of a commander's authority,^ 
though it had always been looked upon as a des- 
perate expedient. As military chief, then, Mr. 
Lincoln was within his rights in declaring the 
slaves free and in ordering his subordinates to 
enforce his decree. So far as the blacks came 
within the control of the army, their status was 
changed to that of freedom. As to those beyond 
the lines of the army, no change was effected ; for 
it is the function of the military arm to effect 
changes primarily in fact and only indirectly in 
law. Had hostilities terminated before the whole 
South was occupied by the armies of the United 
States, there would have been no legal basis for 
a claim to freedom on the part of the slaves in the 
unoccupied regions. Even in the technically occu- 
pied regions there would have been some ground, 
in very many cases, for contesting the claim of 
the blacks to freedom after the re-establishment of 
normal conditions. Only by the adoption of the 

1 Cf. Whiting, War Powers, p. 69 et seq. 



52 



THE CONSTITUTION OF THE 



Thirteenth Amendment was the legal status of 
the freedmen put upon a clear and indisputable 
foundation. 

The efficacy that was widely attributed to the 
Emancipation Proclamation as definitely freeing 
all the slaves in the Confederacy was a deduction 
from the prevalent doctrine which permitted of 
no distinction between the civil and the military 
powers of the President. On a correct under- 
standing of his war power, it can attach only to 
his office as commander-in-chief of the army, and 
can have no effect on the performance of his civil 
duties. As chief civil executive, his actions relate 
to the laws ; as chief officer of the army and navy, 
he is concerned with situations where there is no 
law. But in 1862 it was urgently insisted that a 
state of hostilities effected the immediate absorp- 
tion of civil executive in the commander-in-chief. 
Hence to deny the instant validity of the Eman- 
cipation Proclamation throughout the Southern 
states, was considered equivalent to recognizing 
the independence of those states. But the deduc- 
tion was quite fallacious. As civil executive Mr. 
Lincoln was still President of the whole United 
States, South as well as North ; but as civil ex- 
ecutive he could never have issued the proclama- 
tion. Only as commander of the army did he 
issue it; and the fact that his civil functions 
embraced the whole territory of the Union could 
in no way extend his military authority to regions 



* UNITED STATES IN CIVIL WAR 53 

where he had no army to command. The confused 
thinking of the time on this point probably ac- 
counts for the curious fact that the proclamation 
was countersigned, not by the secretary of war, 
but by the secretary of state. There seems to 
have been some idea that this military decree 
would be endowed with extraordinary efficiency 
by the endorsement of the civil branch of the 
administration. 

While the President had been working con- 
servatively toward the policy which he finally pro- 
claimed. Congress had been pushing with rather 
more vigorous strides toward the goal. The grow- 
ing sentiment that the situation demanded the final 
removal of the slavery question from politics found 
expression first in assaults on the institution on the 
lines of constitutional interpretation that had been 
marked out by the Free-soil and Republican parties. 
First in the District of Columbia and then in the 
territories the powers that had long been held in 
abeyance by threats of secession were in 1862 
finally asserted.^ Much time and ingenuity were 
expended on the project of compensated eman- 
cipation in the border states, to which the Presi- 
dent was so earnestly committed,^ but the radical 
sentiment, stimulated by military reverses, was 
heedless of such moderate methods and urged 

1 For summary of war legislation on slavery, see Whiting, War 
Powers, p. 393 et seq. 

2 McPherson, Rebellion, p. 213 et seq. 



54 THE CONSTITUTION OF THE 

unceasingly the application of the war powers of 
Congress to the desired end, both in seceded and 
in loyal states. 

We have already seen how adaptable the prin- 
ciples of the Confiscation Acts were to the pur- 
poses of emancipation in the rebel districts. Mr. 
Lincoln was careful to point out in his message of 
July 17, 1862/ that the method of setting free 
slaves here employed did not involve the assump- 
tion by Congress of the power to regulate the 
status of slaves within a state. The slaves, he 
showed, were forfeited to, and became the property 
of, the national government in consequence of their 
masters' crimes, and the government elected to set 
them free rather than to hold or sell them. An- 
other means employed by Congress to make in- 
roads on slavery was the peremptory prohibition of 
the return of fugitive slaves by the military author- 
ities. By various prescriptions in the Confiscation 
Acts and in the Articles of War the return of 
fugitives to masters in the rebel states was ren- 
dered practically impossible. 

Still another device for effecting emancipation 
was developed in the employment of negroes in 
the army. There was here, however, no new prin- 
ciple but merely a change of application. It was 
first enacted that any slave of a rebel should, upon 
entering the military service of the government, 

1 McPherson, Rebellion, p. 197. 



UNITED STATES IN CIVIL WAR 55 

become free.^ But such a one would, under the 
Confiscation Act, be assured of his freedom by the 
mere fact of coming into the military lines ; so in 
this particular the law involved no innovation. A 
very distinct advance was made, however, in the 
further provision that, if owned by rebels, the 
mother, wife and children of such slave should 
also be free. This was a direct and unqualified 
assertion of the power to terminate the legal rela- 
tion of master and slave, regardless of de facto 
conditions, by act of Congress. The provision 
was justified by the growing doctrine of military 
necessity, which was held to warrant Congres- 
sional as well as Presidential action. It was a 
"necessary and proper" means for carrying into 
effect the undisputed power to raise and sup- 
port armies. As encouraging enlistments, it fell 
clearly within the war powers of the legislature. 
This line of reasoning was developed with ever- 
widening scope as the war progressed and the dif- 
ficulty of procuring troops increased. In the En- 
rolment Act of 1864, which prescribed the drafting 
of negroes,^ the principle was fully applied to the 
states not in secession. Slaves, when drafted into 
the service, received their freedom, but loyal owners 
were entitled to compensation. Later the wives 
and children of all persons in the army and navy 

1 Act of July 17, 1862; McPherson, Rebellion, p. 274. 

2 13 Statutes at Large, 11. 



56 THE CONSriTUriON OF THE 

were declared free.^ With this the efforts to main- 
tain a connection with the constitution became far- 
cical ; for the act was retrospective, and the acutest 
intellect must fail to discern how future enlist- 
ments would be encouraged by freeing the rela- 
tives of persons who were already in the army 
through conscription. In reality, however, little 
attention was paid to this latest act. Slavery was 
obviously on its last legs, and the Thirteenth 
Amendment had already been submitted to the 
legislatures. 

VI. Principles and Tende?icies in the Exercise of 
the War Power 

Leaving out of account the dogma of state sov- 
ereignty, it had been a matter of faith with most 
of the people of the United States that the federal 
constitution embodied a peculiarly effective solu- 
tion of the problem of liberty versus authority. 
Many rights of the citizen were guaranteed by 
direct and unequivocal prohibitions upon the gov- 
ernment. But in addition to these the eternal 
tendency of government to encroach upon the 
individual was held to be counteracted by three 
principles: first, that no department of the gov- 
ernment should exercise any power not delegated 
to it in the constitution ; second, that through the 
clear separation of the three departments — execu- 

1 Joint resolution of March 3, 1865; '3 Stats, at Large, p. 571. 



UNITED STATES IN CIVIL WAR 57 

tive, legislative and judicial — each should act as 
a restraint upon the others ; and third, that the 
two most aggressive departments, executive and 
legislative, should be subject to frequent judgment 
by the people in the elections. 
, From the beginning of the government's career 
the efficiency of the first of these principles — that 
of delegated powers — had been weakened by the 
development of liberal construction under the doc- 
trine of implied powers. But a limit to the impli- 
cation of powers had always been recognized in the 
positive prohibitions of the constitution. That is, 
in selecting a "necessary and proper" means for 
carrying out an expressly delegated power, none 
could be chosen which was directly prohibited by 
the constitution. Upon resort to the war power, 
however, as v/e have seen, the prohibitions of the 
constitution had to be entirely disregarded. And 
the very first to go by the board were those that 
concerned the immediate rights of life and liberty. 
With the barriers down which had been so care- 
fully constructed for the protection of these rights, 
the invasion of other regions, protected not by 
express prohibition but only by absence of delega- 
tion, could not meet with much resistance. When 
arrest without warrant, detention without hearing 
and conviction without jury were daily incidents, 
though distinctly forbidden, it could only seem 
ridiculous to haggle over the right to make treas- 
ury notes legal tender, merely because nothing was 



58 THE CONSTITUTION OF THE 

said about it in the organic law. The whole spirit 
of war-time legislation compels recognition of the 
fact that the principle of delegated powers ceased 
to have great importance as a restraint upon 
government. 

Nor, when the war power was fully developed, 
was any great influence exerted by the principle of 
the separation and co-ordination of departments. 
The judiciary simply became an "unconsidered 
trifle " as a restraint upon the legislature and the 
executive. As to the relations of the latter two, 
a curious and interesting situation was dev^eloped. 
On the plea of "necessity" each disregarded both 
the doctrine of delegated powers and the explicit 
prohibitions of the constitution. So far as the 
President was concerned, the " necessity " under 
which he acted was that of the military com- 
mander — the subjective motive on which an offi- 
cer acts in adopting measures for the safety of an 
organized force, or for the success of its operations 
in the field when civil law is overthrown. The 
only " necessity " which could rationally be made 
the basis of legislative action was that deducible 
from the "necessary and proper" clause of the 
constitution. Between this and military neces- 
sity there is no connection, save in the identity 
of words. But in the thinking of the war-time, 
the two ideas were completely confused, and the 
commander's privilege of doing whatever he re- 
garded as likely to weaken the enemy was freely 



UNITED STATES IN CIVIL WAR 59 

employed as a warrant for Congressional action. 
Both legislature and executive were on this theory 
"above law." Hence while Congress was endowed 
with authority to legislate entirely at its discretion, 
the President was privileged at his discretion to 
disregard all this legislation. Where such a con- 
clusion was possible, the principle of departmental 
check and balance was obviously of little signifi- 
cance. Good statesmanship in both executive 
and legislature preserved the harmony of the 
two branches till the strain of armed hostilities 
was relaxed, but no longer. In the work of de- 
struction the President was the real government, 
and Congress kept in the background ; in the work 
of reconstruction Congress asserted once more its 
controlling power, and violently put the President 
into the background. 

In the practice of the war-time the only prin- 
ciple working efficiently in limitation of the gov- 
ernment was that of frequent elections. Public 
opinion, in short, and not the elaborate devices 
of the constitution, played the decisive role in 
the United States just as it had played it in 
earlier centuries and presumably less favored 
lands. American chauvinists had boasted long 
and loudly of the superior stability of the written 
constitution ; a great national crisis quickly re- 
vealed that it was no more secure against the forces 
of popular passion than the less artificial structures 
with which it had been so favorably compared. 



60 THE CONSTITUTION OF THE 

Side by side with the assumption by the national 
government of unlimited control over the rights of 
the people, the process of gathering in powers that 
had hitherto been left to the states went steadily 
on during the war. The association of the doc- 
trine of state rights with that of secession was too 
close to permit of much resistance to this process. 
Centralization was the order of the day. Con- 
spicuous among the illustrations of this fact appear 
the substitution of a national for a state system of 
banking and currency ; the creation of a national 
militia system to occupy the field once held by the 
state systems ; and the sweeping jurisdiction con- 
ferred by the Habeas Corpus Act upon the national 
judiciary at the expense of the state courts. The 
legislation by which these results were achieved 
was opposed on constitutional grounds which in 
earlier times would have been universally recog- 
nized as unassailable. But under existing circum- 
stances, the territorial unity of the nation was held 
to outweigh all other considerations, and nothing 
could stand that either positively obstructed or 
even failed most effectively to promote this end. 

It has sometimes been said that January i, 1863, 
marks the most distinct epoch in the history of the 
war. The Emancipation Proclamation is assumed 
as the dividing line between the old system and 
the new. This view is more appropriate to the 
state of affairs in the South than to that in the 



UNITED STATES IN CIVIL WAR 6 1 

North. It is unquestionably true that Mr. Lincoln's 
decree furnished the Southern leaders with a most 
effective instrument for the consolidation of senti- 
ment in the Confederacy. From that time the 
struggle on the part of the South was a desperate 
battle for existence. But in the North, on the 
other hand, the triumph of the radicals in secur- 
ing the adoption of their policy by the President 
awakened feelings of apprehension among the 
other political factions. Mr. Lincoln admits, in 
his message to Congress in December, that the 
issue of the proclamation "was followed by dark 
and doubtful days." Nor was the gloom con- 
fined to the political arena. The bloody reverse 
at Fredericksburg, the narrow escape from dis- 
aster at Murfreesboro, and later the disheartening 
defeat at Chancellorsville, involved the military 
situation in hopeless uncertainty. Meanwhile, the 
discussion of the habeas corpus bill and the con- 
scription act in Congress and in the country at 
large aroused the bitterness which culminated in 
the draft riots.- In all respects the first half of 
the year 1863 was the period of lowest ebb of the 
national fortunes. The turn of the tide came with 
the nation's birthday. In the field, Gettysburg 
and Vicksburg marked the change. The stern 
enforcement of the conscription act was success- 
ful finally in putting the government on a firm 
footing with respect to men, while the enormous 
loan of ^900, OCX), 000, authorized by the last Con- 



62 THE CONSTITUTION IN CIVIL WAR 

gress, satisfactorily settled the matter of sup- 
plies. 

By the summer of 1863, the question of war 
powers in the general government for the suppres- 
sion of insurrection had been definitely settled. 
The military result of the war became only a ques- 
tion of time, and the legal and political results 
gradually began to assume the greatest importance. 
Most obvious of these was the final disappearance 
of the assumed right of state secession, and with 
it the whole doctrine of state sovereignty in all its 
ramifications. For, while it is often said that a 
right cannot be destroyed by force, the maxim 
refers rather to the abstract moral conviction than 
to the concrete legal privilege. The effort to ex- 
ercise the alleged right had failed ; and whether 
the means employed to prevent the exercise were 
revolutionary or not, the constitutional law of the 
country can take cognizance only of the results. 
But if the right of a state as an organized commu- 
nity to sever its political relations with other com- 
munities does not exist, there can be no claim of 
sovereignty for the state. For if political sover- 
eignty means anything, it includes the attribute 
of self-determination as to its status in respect to 
other sovereignties. Limitation in this attribute 
is fatal to the conception of sovereignty, and ac- 
cordingly, the failure of secession removed one 
pregnant source of confusion at the very basis of 
our system. 



THE CONSTITUTION OF THE UNITED 
STATES IN RECONSTRUCTION 

The doctrine of state sovereignty perished in 
the destruction of the Confederate armies. With 
that dogma our constitutional law ceased to have 
any concern. Its principle was antecedent to 
and above the constitution. State rights, on the 
other hand, were, under the theory of national 
sovereignty, determined by the constitution itself. 
Before the war the scope of the powers assigned 
to the states had been influenced much by the 
state-sovereignty theory. The pressure of the 
government's peril during the rebellion, however, 
had caused a natural reaction, and many of the 
most widely recognized attributes of state author- 
ity had been assumed by the general government. 
With the assured success of Northern arms, a 
distinct definition of the rights of a state under 
the new situation became a matter of the first 
importance. The working out of such a defini- 
tion was from the legal standpoint the main prob- 
lem of reconstruction. 

Inextricably involved in this leading legal ques- 
63 



64 THE CONSTITUTION OF THE 

tion, was an even more troublesome practical 
difficulty. What was, and what should be, the 
civil and political status of the Southern blacks ? 



I. Status of the Rebel States and of the Negroes 
at the Close of Hostilities 

The definition of state rights first presented 
itself as a vital political issue when the national 
authority began to be firmly re-established in 
the rebeUious communities. In the course of 
the year 1863 the military situation in Tennessee 
and Arkansas seemed to justify the President in 
taking the preliminary steps towards the rehabili- 
tation of those states with civil authority. His 
message of the 8th of December may be taken 
as the beginning of the process which only termi- 
nated with the withdrawal of the troops from the 
capitals of Louisiana and South Carolina by Presi- 
dent Hayes in 1877. Between the close of 1863 
and the end of hostilities no important progress 
was made towards a solution of either of the great 
problems which were now plainly confronting the 
nation. All phases of the matters were freely 
discussed, but the President and the legislature 
were unable to agree upon either the fundamental 
principles of a theory or the details of a practical 
measure. The immediate end sought at this 
time was the restoration to political rights of the 
people of the regions fully in the possession of the 



UNITED STATES IN RECONSTRUCTION 65 

national forces. To effect this purpose a clear 
conception of the exact status of the districts in 
question was requisite. As to this status there 
were wide differences of opinion. Without con- 
sidering at this point the various theories pro- 
posed, it will be well to sketch the public acts 
of the three departments which had had a 
bearing on the question at issue. Succinctly- 
put, the question was this: Had the rebellious 
communities any rights as states under the con- 
stitution } 

A review of the acts indicative of the view 
of the executive department of the government 
upon this point presents the following result: 
In his inaugural, President Lincoln stated his 
conviction that the Union could not be broken by 
any pretended ordinance of secession. This view 
was reaffirmed in his first message ; and his non- 
intercourse proclamation of August 16, 1861, de- 
clared not the states, but the inhabitants of the 
states mentioned, to be in insurrection against the 
United States. In all the executive ordinances 
the illegal proceedings were assumed to be the 
acts of assemblages of individuals, and not the 
acts of the corporate states. A most important 
deduction from this theory was that the loyal ele- 
ment of the Southern people would be exempt 
from the penalties of the insurrectionary trans- 
actions. It was this element, indeed, which Lin- 
coln adopted as the basis of the measures of 



^ THE CONSTITUTION OF THE 

restoration which he proposed in 1863. On the day 
Congress met, December 8, he issued a proclama- 
tion, the preamble of which recited the subversion 
of the state governments by persons in rebellion 
and hence guilty of treason, and the desire of 
certain of these persons to reinaugurate loyal 
governments ''within their respective states." 
An oath was prescribed, the taking of which was 
to be a satisfactory proof of loyalty, and the Presi- 
dent pledged himself to recognize any state gov- 
ernment formed under certain conditions by a 
number of loyal persons equal to one-tenth of 
the voting population in i860. Mr. Lincoln was 
thus true to the position assumed at the outbreak 
of the war. Nor did he recede from this posi- 
tion up to the time of his death. The executive 
department, in short, was fully committed to 
the doctrine that the corporate existence of the 
seceding states was not interrupted by the 
war.i 

If we review the course of the legislature in 
its bearing on this question, we find up to a cer- 
tain point a similar result. The act which pro- 
vided for the definite recognition of the existence 
of a state of war, that of July 13, 1861, empowered 
the President to declare intercourse suspended 
with the inhabitants of certain enumerated dis- 
tricts, and gave no intimation that the states, as 

1 See Lincoln's speech just before his death; McPherson, Rebel- 
lion, p. 609. 



UNITED STATES IN RECONSTRUCTION 67 

such, were concerned. In imposing the direct 
tax of twenty millions in 1861, the seceding states 
were assigned their proportionate shares/ and by 
a later law^ the amounts thus assigned were made 
a charge upon the land in the respective states. 
Further, the creation of West Virginia was valid 
only on condition that the consent of Virginia 
was obtained ; and we find, in the law erecting 
the new state, that the legislature of Virginia did 
give its consent.^ Many other instances might 
be adduced to illustrate the attitude of Congress 
toward the question of state existence in the early 
days of the war. It certainly was one with the 
President in according to the state a being in- 
capable of destruction by any unconstitutional 
organizations of its inhabitants. 

But there came a time when symptoms were 
manifested of a change of heart in the majority 
in Congress. With the brightening prospects of 
the military situation, the anxiety to secure firmly 
the settlement of the slavery question led to a 
closer examination of the consequences that might 
flow from too strict an adherence to a theory 
better adapted perhaps to a time of doubt than 
to a time of certain success. The subject of state 

1 12 Statutes at Large, 295. 

2 Ibid., 422. 

3 Ibid., 633. This consent was given by a revolutionary organi- 
zation formed by the Unionists after the triumph of their adversaries 
in the adoption of the ordinance of secession. 



68 THE CONSTITUTION OF THE 

status became very prominent through the steps 
toward restoration announced by the President in 
his message in December of 1863 and the accom- 
panying amnesty proclamation. So pronounced 
a movement towards the realization of the old 
state-rights doctrine aroused all the radical ele- 
ments. It was feared that Mr. Lincoln would be 
lax in exacting satisfactory conditions from the 
reorganized communities. Accordingly, under the 
leadership of Senator Wade and Representative 
Henry Winter Davis, a bill was brought in, and 
after long discussion passed, prescribing condi- 
tions of restoration that were much more stringent 
than those contained in the President's plan, and 
making Congress instead of the executive the ulti- 
mate authority on the question of recognition. 
But so far as the matter of state status was con- 
cerned, the principle of the Wade-Davis bill was 
not different from that adhered to by the President. 
The rebellious states were regarded as having lost 
their governments through insurrection within 
their limits, and it was assumed as the duty of 
the national government, under the clause of the 
constitution directing the guarantee of a republi- 
can form in each state, to declare when such a 
form existed. The whole plan of the bill, how- 
ever, fell through, by the President's withholding 
his signature till the adjournment of Congress. 
He thereupon issued a proclamation stating his 
objections to the bill and renewing his encourage- 



UNITED STATES IN RECONSTRUCTION 69 

ment to the loyal people of the states in the 
reorganization of their governments.^ 

Later on, in consequence of the practical appli- 
cation of the President's plan in Louisiana and 
Arkansas, the question was presented to the Thirty- 
eighth Congress in another shape. An organiza- 
tion had been effected in each of those states in 
accordance with Lincoln's proclamation, and cre- 
dentials were accordingly presented to each house 
of persons claiming to represent the restored states. 
It became necessary for the houses to pass on the 
rightfulness of the claims. The Senate judiciary 
committee reported adversely to the admission of 
the claimants from Arkansas on the grounds, first, 
that the President's proclamation declaring the in- 
habitants of Arkansas in a state of insurrection 
had not been revoked; and second, that the su- 
premacy of the military power in the state pre- 
cluded the possibility of a civil organization that 
should be republican within the meaning of the 
constitution. In the House, the committee on 
elections reported favorably on the Arkansas 
claimants, but no action was taken on the report. 
As to Louisiana the result was no more conclusive. 
Favorable reports were made by committees in 
both houses, but were not acted upon. Again, in 
connection with the electoral count in February, 
1865, the opportunity for an explicit declaration 
was evaded. By joint resolution it was enacted 

1 McPherson, Rebellion, p. 318. 



70 THE CONSTITUTION OF THE 

that, because ''the inhabitants and local authori^ 
ties" of the eleven enumerated states were in 
armed rebellion on election day, "the states" were 
not entitled to representation in the electoral col- 
leges.i No conclusive expression of opinion, in 
fact, was made by the Thirty-eighth Congress on 
the vital point of state status.^ Resolutions with- 
out number were offered, embodying all conceiv- 
able shades of belief on the issue, but, after eliciting 
much discussion, they were invariably consigned 
to a permanent resting-place on the table, or to a 
quiet grave in some committee. 

There was a reason for this persistent ignoring 
of so important a question. The sentiment in 
favor of an absolute settlement of the slavery ques- 
tion had resulted in the submission to the states 
of the Thirteenth Amendment; and it was evident 

1 McPherson, Rebellion, pp. 577, 578. 

2 The debates in the last session of this Congress (1864-65) 
afforded abundant evidence that the doctrine of the continuous 
existence of the states that had seceded was losing ground. The 
Wade-Davis reconstruction bill contained clauses emancipating the 
slaves and declaring them and their posterity forever free — that is, 
practically abolishing slavery — in the rebellious districts. It had 
been a universally accepted principle that Congress had no powder to 
enact any such law in respect to states. The passage of the bill 
through the two houses was due in part to the theory that no states 
existed in the regions designated. Many supporters of the measure, 
however, considered that the war power was a sufficient basis for the 
provision, and that no consideration of state status was involved. 
The wording of the emancipation clause itself was : " All persons 
held to involuntary servitude or labor in the states aforesaid are 
hereby emancipated and discharged therefrom." 



UNITED STATES IN RECONSTRUCTION 7 1 

that until its adoption had put the question of 
slavery beyond the reach of the states, no further 
and conclusive steps toward restoration could be 
taken. But the Congress expired before the fate 
of the amendment was known, and shortly after- 
wards the collapse of the Confederacy left the 
national authority in the South supreme, but with- 
out any clear legislative expression as to the extent 
of that authority. It appears, then, that although 
the legislative department of the government had 
not, like the executive, consistently affirmed the 
persistence of the state entities as political units 
in our system, it had not, up to this time, rejected 
the theory. 

The view held by the judiciary with respect to the 
war was first enunciated in the Prize Cases, decided 
in 1862. While a difference of opinion was mani- 
fested on the question, zvhen an actual state of war 
began to exist, the Supreme Court was unanimous 
in its judgment as to the nature of the conflict. 
It was recognized as a military assertion of the 
authority of the general government over the in- 
habitants of certain states and districts. " Con- 
gress," the opinion declares, " cannot declare war 
against a state or any number of states, by virtue 
of the constitution." ^ Nor has the President any 
power to initiate or declare a war of any sort. He 
is only authorized bylaw "to suppress insurrection 
against the government of a state, or of the United 
1 2 Black, 668. 



72 THE CONSTITUTION OF THE 

States." The individuals conducting the present 
insurrection have taken advantage of the peculiar 
constitution of our system, and have ''acted as 
states claiming to be sovereign"; but nowhere in 
cither majority or dissenting opinion is any recog- 
nition given to the idea that the states as known 
to the constitution are concerned in the war. 
Again, in the case of The Venice,^ Chief Jus- 
tice Chase describes the government's policy as 
embracing no views of subjugation by conquest, 
but as seeking only " the re-establishment of the 
national authority, and the ultimate restoration of 
states and citizens to their national relations." 
There appears to be no indication, then, that the 
judiciary ever doubted the constitutional existence 
of the states. Circumstances had disarranged their 
relations with the federal government, but with 
the correction of the disturbance the former condi- 
tions would be resumed. 

From the foregoing review of the attitude of all 
the departments of the United States government, 
it seems unquestionable that, while the necessities 
of war had made sad havoc with the rights of the 
states as well as of individuals, yet upon the return 
of peace a resumption was contemplated of the ante 
belliim status of both, subject only to such modifi- 
cations as the now undisputed sovereignty of the 
nation should impose. 

As to the status of the negroes, the whole 
1 2 Wallace, 278. 



UNITED _S TA TES IN RE CONS TR UC TION J 3 

question was in hopeless confusion. Under the 
operation of Mr. Lincoln's Emancipation Procla- 
mation, and of the various acts of Congress con- 
taining provisions in reference to the subject, 
the number of freedmen dependent upon the 
government had become enormous. The care of 
these dependents became early a subject of con- 
siderable importance. Commanders were seriously 
embarrassed by the great crowds of improvident 
blacks that attached themselves to the armies in 
their campaigns. It was not considered just to 
the Southern slaves to give them their freedom 
and then leave them to be re-enslaved as soon as 
the national forces had gone by. Such a course 
indeed would have been impossible, since the freed- 
men themselves instinctively refused to stay. The 
border states protested vigorously against the in- 
flux of paupers to burden their already oppressed 
taxpayers. Private philanthropy took in charge 
the work of civilizing on the spot, but always 
under the protection of the army, such of the 
unfortunates as could be assembled at various 
points along the borders of the Confederacy. By 
act of March 3, 1865, the whole matter was sys- 
tematized by the establishment of a bureau in the 
War Department 1 to have control of all subjects 
relating to refugees and freedmen from the terri- 
tory embraced in the military operations of the war. 
The act authorized the issue of provisions, clothing 

1 13 Statutes at Large, 507. 



74 THE CONSTITUTION OF THE 

and fuel to destitute refugees and freedmen, and 
provided for their settlement on the abandoned or 
confiscated land of rebels. The existence of the 
bureau was limited to the duration of the rebellion 
and for one year thereafter. It was evidently the 
belief that the supervision of the general govern- 
ment would accomplish its object within a year 
after the cessation of hostilities, and that then the 
freedmen could be relinquished to the normal opera- 
tion of the laws. Such, at least, was the view of 
the conservative Republicans, who hesitated to 
convert the national government into a perma- 
nent dispenser of charity. The act was regarded 
as based entirely upon the war power of the govern- 
ment, and was accordingly limited in its duration 
to the state of affairs which justified the exercise 
of such power. 

Little more than a month after the passage of 
the bill, the Confederacy fell. \ The whole South 
came under the domination of the armies of the 
United States, and by the operation of the Presi- 
dent's orders all the slaves in those regions became 
de facto free. Whether or not they rose imme- 
diately to a position of legal equality with their 
former masters was an unsettled question, now to 
become of the first importance. But whatever 
their rights at this period, the authority to which 
they looked for a guarantee of those rights divided 
the negroes distinctly from the other race. As has 
been indicated above, a reorganized state jurisdiction 



UNITED STATES IN RECONSTRUCTION 75 

was to regulate the affairs of the restored com- 
monwealths ; but for the freedmen a bureau of 
the United States War Department had the in- 
definite jurisdiction conferred by the words, "the 
control of all subjects relating to refugees and 
freedmen from rebel states." The status of the 
negroes thus seems to have been practically that 
of wards of the national government, with rights 
totally undetermined. 

II. Presidential Restoration of the States 

Upon the theory which has been shown to have 
been recognized in the conduct of the war, the 
problem of restoring the states to their normal 
position in the Union was apparently simple. 
The instant the state of insurrection ceased 
which had given rise to the attitude of belliger- 
ency towards the inhabitants of the rebellious 
regions, a^ite belhim relations would be resumed, in 
so far as not modified by legislation during the 
war. That no such special modification had 
been effected in the relations of the insurrec- 
tionary states, had been assumed by all the 
departments of the government. But as to the 
individuals in rebellion, certain important meas- 
ures had been passed. Most prominent were the 
provisions of the Confiscation Act of 1862, which 
declared severe penalties upon such persons. By 
section thirteen of this act, however, the President 



76 THE CONSTITUTION OF THE 

was authorized to extend amnesty and pardon at 
his discretion ''to persons who may have partici- 
pated in the existing rebellion in any state or part 
thereof." It was therefore left to the executive to 
relieve individuals from the consequences of their 
crimes so far as he saw fit. In pursuance of this 
authority, Mr. Lincoln had issued his proclamation 
of amnesty in 1863, prescribing a form of oath, 
the taking of which would restore to his normal 
relations a person who had incurred the disabilities 
resulting from participation in the rebellion. The 
nucleus of loyal citizens thus secured in any state 
was competent to take the steps necessary to the 
organization of a government for the state. Nor 
did it matter that they were a minority of the po- 
litical people of the state — even the one-tenth that 
the President fixed upon arbitrarily as a sufficient 
number. The guaranty clause of the constitution 
would warrant the protection of a loyal minority by 
the national authorities against an overwhelming 
majority of disloyal and rebellious citizens. 

In approaching reconstruction Mr. Lincoln's 
great anxiety was to get something in the nature 
of a state organization to recognize, without being 
over-critical as to how it was secured. Consis- 
tency required that the impulse to commonwealth 
organization should come, nominally at least, 
from the people of the unsettled community. 
His proclamation accordingly contained no man- 
date of action, but merely declared the circum- 



UNITED STATES IN RECONSTRUCTION '/'/ 

Stances under which he would recognize a govern- 
ment in any state. These circumstances were, 
(i) the completion of an organization by persons 
(2) who had subscribed to the oath of allegiance 
to the United States, and (3) who had pledged 
themselves to support the acts and proclama- 
tions promulgated during the war in reference to 
slavery. It is true that these terms were practically 
conditions imposed upon citizens of states as pre- 
requisite to the exercise of their rights. But 
the plan, as Lincoln stated in his message,^ 
was merely presented as a rallying point, which 
might bring the people to act sooner than they 
otherwise would, and was not intended as a final 
solution of all the delicate questions involved. In 
no rebellious state, save Virginia, was there a gov- 
ernment whose members possessed the most funda- 
mental qualification for legitimacy — namely, that 
secured by having taken the oath prescribed by 
article six of the constitution.^ To obtain such 
a government was Lincoln's main object. In 
Louisiana and Arkansas he was successful. Con- 
gress, as has already been stated, declined to com- 
mit itself to such recognition of these governments 
as would have been implied in the admission of 
members chosen under their auspices. But under 

1 McPherson, Rebellion, p. 147. 

2 " The members of the several state legislatures, and all executive 
and judicial officers, both of the United States and of the several states, 
shall be bound by oath or affirmation to support this constitution.'* 



78 THE CONSTITUTION OF THE 

executive protection their organizations were main- 
tained till Congressional reconstruction supplanted 
them. In Tennessee, where there was a very strong 
Union sentiment, Andrew Johnson, in the capacity 
of military governor, effected an organization which 
went into full operation early in the spring of 1865. 
The government thus established also continued 
through the period of restoration. 

Upon the collapse of the Confederacy and the 
death of President Lincoln, Mr. Johnson devoted 
himself to the application of his predecessor's plan 
in the other states. In Virginia, where a loyal 
organization had been maintained at Alexandria, 
with Mr. Pierpoint as governor, ever since the 
separation of West Virginia, he simply proclaimed 
his purpose to carry out the guarantee of a repub- 
lican form of state government by supporting the 
measures of this authority.^ By the same order, 
the administration of all the departments of the 
general government was put in operation through- 
out the state. Three weeks later Johnson's 
amnesty proclamation was issued. It followed 
Lincoln's closely in tenor, but the oath pre- 
scribed as a condition of pardon involved a more 
unqualified recognition of the validity of emanci- 
pation, and the classes of persons excluded from 
the benefits of the amnesty were more numerous. 
Accompanying the amnesty manifesto was issued 
the order to put in operation the plan of restora- 

^ Proclamation of May 9, 1865. 



UNITED STATES IN RECONSTRUCTION 79 

tion in North Carolina, and at intervals up to the 
middle of July successive proclamations inaugu- 
rated the system in all the other rebellious states. 
Johnson evidently aimed at operating on exactly 
the same theory as his predecessor. In the pre- 
amble of his proclamations he marked out the con- 
stitutional basis of his action : The United States 
must guarantee a republican form of government, 
and protect each state against invasion and domes- 
tic violence ; the President is bound to see that the 
laws are executed ; rebellion, " now almost entirely 
overcome," has deprived the people of the state 
of all civil government ; it is therefore necessary 
and proper to carry out and enforce the obliga- 
tions of the United States to the people of the 
state. In consequence of these principles and 
facts, the President and commander-in-chief of the 
army and navy appointed a provisional governor 
for each of the disturbed states, with the duty of 
securing the re-establishment of the constitutional 
order. In the appointment of this special officer, 
Mr. Johnson followed the action of Mr, Lincoln 
in designating ''military governors" for several of 
the states in which a firm foothold was early ob- 
tained by the army. The duty of the provisional 
governors was laid down in much the same terms 
that had been employed in Lincoln's instructions 
to Johnson when the latter held the office of mili- 
tary governor of Tennessee.^ They were directed 

1 McPherson, Rebellion, p. 436. 



8o THE CONSTITUTION OF THE 

to prescribe rules for the calling of a convention 
of delegates chosen by the loyal people of the re- 
spective states, and "to exercise all powers neces- 
sary and proper to enable such people to restore 
the states to their constitutional relations to the 
federal government." The test of loyalty was sub- 
scription to the oath of amnesty as set forth in 
the President's proclamation, and a prerequisite of 
voting was the qualifications of an elector under 
the laws of the state in force immediately before 
the act of secession. Further, the President de- 
creed that the convention, "or the legislature 
thereafter assembled, will prescribe the qualifica- 
tion of electors, and the eligibility of persons to 
hold office under the constitution and laws of the 
state, a power the people of the several states 
composing the Federal Union have rightfully ex- 
ercised from the origin of the government to the 
present time." ^ 

In these electoral conditions was embodied the 
principle which developed at once a centre of an- 
tagonism to the President. It had already become 
a cardinal doctrine of the radical Republicans that 
^>' the necessary corollary of emancipation and aboli- 
tion was enfranchisement of the freedmen. By 
assuming that secession had effected the extinc- 
tion of the states, they had removed all constitu- 
tional obstacles to the realization of this doctrine 

1 For Mr. Johnson's proclamations, see McPherson, History of the 
Reconstruction, p. 8 ei seq. 



UNITED STATES IN RECONSTRUCTION 8 1 

by the general government. But here was a dec- 
laration by the President that the whole matter 
was to be left to the Southern whites ; and the 
fate of negro suffrage in such hands was not 
doubtful. Around this rallying point, then, were 
speedily grouped all the elements of opposition 
to the President's policy. The conviction that 
the emancipated race, made by circumstances the 
wards of the nation, ought to continue under the 
nation's care, was common to all. But opinions 
as to the means of effecting this were of all de- 
grees of diversity. Conservatives considered that 
if the civil rights of the blacks could be guaran- 
teed by the general government, the political privi- 
leges could be left to the states. To assume this 
guarantee by law involved grave questions of con- 
stitutionality; to fix it by constitutional amend- 
ment seemed to require a previous determination 
of the status of the rebel states. In view of the 
difficulties that beset every plan that was sug- 
gested, many were inclined to give the President's 
experiment a fair trial, that the data thus obtained 
might be utilized in future adjustment. 

In the midst of all this conflict of judgment, 
however, restoration on the line of the proclama- 
tion was accomplished. By the general amnesty 
and by special pardon of many in the excepted 
classes, a loyal population was secured in all the 
Southern states. Conventions revised the various 
state constitutions under the direction of the pro- 

G 



$2 THE CONSTITUTION OF THE 

visional governors, and also under immediate tele- 
graphic supervision from Washington. The acts 
which the President demanded as conditions of his 
recognition were : the nullification of the ordinances 
of secession, the repudiation of the war debt, and 
the ratification of the Thirteenth Amendment by 
the first legislature. These measures were adopted 
with more or less grace ; several of the states 
repealed, instead of declaring null and void, the 
secession ordinances, and South Carohna evaded 
altogether the repudiation of her war debt. But 
in spite of occasional manifestations of ill-feeling, 
the alluring prospect of self-government and rep- 
resentation in the national legislature kept the 
actions of the new governments in substantial 
accord with the President's wishes. The work of 
reorganization was completed, and by the opening 
of the Thirty-ninth Congress in December, 1865, 
representatives and senators from most of the rebel 
states were ready to present their credentials for 
admission to that body. In his annual message, 
Mr. Johnson formally called upon Congress to com- 
plete the work of restoration, by receiving the 
Southerners, subject to the constitutional right of 
each house to judge of the elections, qualifications 
and returns of its own members. On December 
18, the secretary of state issued his proclamation 
that the Thirteenth Amendment was in force, 
having been ratified by twenty-seven states, among 
which were eight that had recently been in rebel- 



UNITED STATES IN RECONSTRUCTION 83 

lion. On the same day the President in a special 
message to Congress announced specifically that 
the rebellion had been suppressed ; that in all the 
insurrectionary states, except Florida and Texas, 
the people had reorganized their governments ; and 
that in those two satisfactory progress was making. 
Upon the completion of the organization in these 
two states, then, the constitutional relations be- 
tween commonwealths and national government 
would be, in the opinion of the executive, exactly 
as they had been before the war. 

But the state of war which had been proclaimed 
in 1 86 1 and 1862 by President Lincoln had not yet 
formally ceased to exist. By successive orders for 
particular localities, the blockade, the prohibition of 
commercial intercourse, and the suspension of the 
habeas corpus were revoked by Mr. Johnson ; but it 
was not till August 20, 1866, that the final procla- 
mation went forth that the insurrection was ended, 
"and that peace, order, tranquillity and civil au- 
thority now exist in and through the whole of the 
United States of America." Prior to that date, 
in all the states not declared at peace by special 
proclamations, the presumptive status of the inhabi- 
tants, under the unrevoked orders of Mr. Lincoln,^ 
was that of public enemies. The only evidence of 
a different status was the fact of having taken the 
amnesty oath, or of having received a special par- 
don from the President. By the final order of Mr. 

1 McPherson, Rebellion, pp. 149, 150. 



84 THE CONSTITUTION OF THE 

Johnson, however, the liability of all civilians in the 
United States to the President's military authority 
ceased, and no legal effect of the war remained 
upon the private citizen in the Southern states, 
save that a rapidly diminishing number of unpar- 
doned individuals were still responsible before the 
civil law for the crimes of treason and rebellion. 

Such was the condition of affairs that was 
claimed to have been brought about, by the 
autumn of 1866, through executive action. As 
far as the judiciary was concerned, the restoration 
seemed to be fully accepted. The district courts 
of the United States resumed their work under 
the direction of the President as fast as the pro- 
visional organizations were effected. Chief Justice 
Chase declined to sit on the circuit bench while 
military authority was maintained in the circuit, 
on the ground that it was not becoming to the 
dignity of the highest judicial officers of the gov- 
ernment to act under even the least shadow of 
subjection to armed force. He did not object, 
however, to the holding of a circuit court by the 
district judge sitting alone.^ As early as the De- 
cember term of 1865, the Supreme Court ordered 
the cases on its docket from the Southern states 
to be called and disposed of.^ Upon the proclama- 
tions by the President of the end of the insurrection, 
the regular sessions of all the courts were resumed. 

^ Letter to the President, Annual Cyclopedia for 1866, p. 514. 
- 3 Wallace, viii. 



UNITED STATES IN RECONSTRUCTION 85 

This action indicated a judicial belief that normal 
conditions had been restored in the South. The 
rebel states, at all events, were not reduced to the 
territorial status ; for by the long-accepted princi- 
ple laid down by Chief Justice Marshall in 1828, 
the jurisdiction of the constitutional courts of the 
United States did not extend to territories. In 
such regions it was for Congress to provide at will 
for the administration of justice.^ 

Great weight cannot be attached, however, to 
the attitude of the judiciary in this matter. Its 
duty was to follow the decisions of the political 
departments on questions of political status. But 
as regards the status of the Southern states, it 
early became evident that no harmony of views 
could be reached between the executive and the 
legislative. Already before the meeting of Con- 
gress Mr. Johnson's course had provoked sharp 
criticism, and threats of undoing his too hasty 
work of restoration had not been wanting. Even 
the friends of his general policy felt aggrieved that 
so important a matter had been determined without 
any reference whatever to the legislature. They 
thought that an extra session of Congress should 
have been called after the collapse of the Con- 
federacy. In the opposition on principle to the 
President's policy three chief elements were dis- 
tinguishable: first, the extreme negrophiles, who, 
on abstract grounds of human equality and natural 

1 American Ins. Co. vs. Canter, i Peters, 546. 



S6 THE CONSTITUTION OF THE 

rights, demanded full civil and political privileges 
for the freedmen ; second, the partisan politicians, 
who viewed the elevation of the blacks mainly as a 
means of humbling the Democrats and maintaining 
the existing supremacy of the Republican Party ; 
and third, the representatives of an exalted states- 
manship, who saw in the existing situation an 
opportunity for decisively fixing in our system a 
broader and more national principle of civil rights 
and political privilege. It was this last element 
that controlled the proceedings during the earlier 
months of the Thirty-ninth Congress. Later the 
more radical elements assumed the lead. 

The President, as we have seen, had prepared 
to push his theory before Congress at its very 
opening. Credentials were promptly presented by 
members elect from the restored states. But Con- 
gress declined to be hurried into committing itself 
to any doctrine on the great subject. Instead of 
the customary reference of the credentials of the 
claimants to the committees on elections in the 
respective houses, a joint committee of fifteen was 
constituted to inquire into the condition of the 
rebellious states and their title to representation ; 
and it was agreed that all papers relating to 
those states should be referred to this committee. 
Thus was provided a convenient limbo to which 
might be relegated any question that should 
threaten to interfere with the placid progress of 
Congressional deliberation. The next step was 



UNITED STATES IN RECONSTRUCTION 8/ 

to unfold a scheme by which the ends of the 
conservative Repubhcans might be attained by 
simple legislation. 

III. Nationalization of Civil Rights 

Despite the strong opposition to Mr. Johnson's 
policy among the Republicans in Congress, there 
was at the same time a disinclination to an open 
rupture with the President. It was in obedience 
to this latter feeling that the joint committee on 
reconstruction was so heartily agreed to. Through 
this the main issue — the recognition of the South- 
ern state governments — was deferred until it could 
be ascertained whether a substantial protection for 
the freedmen might not be obtained without coming 
to open hostility with the President. In accordance 
with this plan the aggressive spirit of the radicals 
was repressed, and a series of measures was de- 
vised, of which the Freedmen's Bureau Bill was 
the first to be presented. 

By this bill ^ the bureau which had been organ- 
ized during the preceding session ^ was enlarged 
as to both the duration and the territorial extent 
of its powers. The limit of one year after the end 
of the war was abolished, and the bureau's opera- 
tions were to extend to " refugees and freedmen 
in all parts of the United States." The powers of 
the officials were of the vaguest character imagina- 

1 McPherson, Reconstruction, p. 72. ^ ggg ante, p. 73. 



88 THE CONSTITUTION OF THE 

ble, involving practically absolute discretion in the 
regulation of matters in which the freedmen were 
interested. Provisions, clothing and fuel were to 
be furnished to destitute blacks, land was to be set 
apart for their use, and schools and asylums to be 
erected for their benefit. But the central point of 
the bill was in the seventh and eighth sections. 
Here it was made the duty of the President to 
extend the military protection of the bureau to all 
cases in which the civil rights and immunities of 
white persons were denied to others on account 
of race, color or any previous condition of slavery 
or involuntary servitude. Further, any person 
who should, under color of any state law, ordi- 
nance or custom, subject the negro to the depriva- 
tion of equal civil rights with the white man, 
should be guilty of a misdemeanor, and the juris- 
diction of such cases was conferred upon the offi- 
cials of the bureau. Such jurisdiction was limited, 
however, to states in which the ordinary course of 
judicial proceedings had been interrupted by re- 
bellion, and was to cease there when those states 
should be fully restored to all their constitutional 
relations to the United States. 

The grave questions of constitutionality in- 
volved in the details of this bill were modified 
in their bearing by the general basis on which 
the whole legislation rested. It was, according to 
Senator Trumbull, who had charge of it in the 
Senate, a war measure, and inapplicable, by its 



UNITED STATES IN RECONSTRUCTION 89 

terms, to any other state of affairs.^ Under the 
** necessity" which the existing insurrection had 
made the supreme law of the land, the forcible 
displacement of a state's authority over matters 
of civil jurisdiction normally under its control, was 
fully justified. 

But the President, in vetoing the bill, protested 
against "declaring to the American people and 
to the world, that the United States are still in 
a condition of civil war." He asserted that the 
rebellion was, in fact, at an end.^ Mr. Johnson 
was in rather a difficult position here; for the 
habeas corpus was still suspended in the Southern 
states, and even while he was writing his veto 
message a military order had gone forth looking 
to the suppression of disloyal papers there.^ It 
was reasonably asked upon what authority such 
executive acts could be performed if a state of 
peace prevailed. The President's real grievance 
was evidently that which he referred to last in 
his veto message. He complained that the bill 
regarded certain states as "not fully restored in 
all their constitutional relations to the United 
States," and announced that in his judgment most 
of the states were fully restored, and were en- 
titled to all their constitutional rights as members 
of the Union. Congress was censured with re- 
pressed severity for refusing to accord to those 

1 Cong. Globe, ist sess., 39th Cong., p. 320. 

2 McPheraon, Reconstruction, p. 68 et seq. * Ibid,, p. 133. 



90 



THE CONSTITUTION OF THE 



states the right imperatively required by the con- 
stitution, of representation in the two houses. 

The President's veto, made effective by the 
failure to override it in the Senate, strengthened 
the extremists in Congress ; for many who desired 
the success of the conservative plan were indig- 
nant that it should be thwarted at the outset. 
A concurrent resolution was passed declaring that 
no member from any of the insurrectionary states 
should be admitted to either house till Congress 
should declare such state entitled to representa- 
tion.^ This was a formal declaration of war upon 
the executive policy. It notified the President 
that Congress intended to form its own judgment 
upon the status of the states, irrespective of any 
extraneous decision. It precipitated the conflict 
that had been impending since the amnesty proc- 
lamation of 1863, and which Lincoln's tact had 
been successful, and might afterwards have been 
successful, in avoiding. And finally, it indicated 
a strengthening of the feeling that some guaranty 
for the rights of the freedmen should be secured 
before the rights of the states should be conceded. 
A great silence and mystery hung about the com- 
mittee whose report was to embody the views of 

1 McPherson, Reconstruction, p. 72. This declaration had been 
proposed as part of the resolution providing for the joint committee 
on reconstruction, but had been rejected by the Senate. According 
t(j Mr. Blaine the immediate occasion of its passage now was the pres- 
sure of Tennessee for admission. Twenty Years of Congress, II, 203. 



UNITED STATES IN RECONSTRUCTION 9 1 

Congress on the condition of the states. No one 
doubted that the enveloping clouds would continue 
until a satisfactory solution of the negro question 
should be discovered. 

As the next step in the direction of such a solu- 
tion, the Civil Rights Bill was presented to the 
Senate by its judiciary committee. The Freed- 
men's Bureau Bill had been confessedly in the 
nature of a temporary expedient. It had aimed 
to secure the protection of the blacks by military 
authority for a period that Congress should deem 
sufficient. By the second measure, however, the 
protection was to be incorporated permanently 
into the law of the land, and to be entrusted to 
the civil authorities of the nation. As the bill 
passed, 1 it provided first a broad foundation for 
rights in the declaration that " all persons born in 
the United States, and not subject to any foreign 
power, excluding Indians not taxed, are . . . citi- 
zens of the United States." It then secured to 
all such citizens of every race and color the same 
rights as were enjoyed by white citizens in respect 
to making and enforcing contracts, appearing in 
the courts, receiving, holding and transferring 
property, and enjoying the benefit of all laws for 
the security of person and property. Section sec- 
ond made it a misdemeanor to subject any inhabi- 
tant of any state or territory to the deprivation of 
any right secured by the act, or to different pun- 

^ McPherson, Reconstruction, p. 78. 



v 



92 THE CONSTITUTION OF THE 

ishment, by reason of race, color or previous con- 
dition of servitude, from that prescribed for white 
persons. The remainder of the bill was occupied 
with provisions in great detail for the enforcement 
of the first two sections. Cognizance of all cases 
arising under the act was given exclusively to 
United States courts, and the machinery for its 
strict execution was borrowed, with grim satis- 
faction, from the Fugitive Slave Act.^ 

At the time the Civil Rights Bill was proposed, 
it had become a well-grounded conviction that the 
Southern states would not yield to the negroes any 
appreciable share of the rights which Northern 
sentiment demanded for them. The legislatures 
of the reorganized governments, under cover of 
police regulations and vagrancy laws, had enacted 
severe discriminations against the freedmen in all 
the common civil rights.^ In several states the 
tendency of these enactments toward a system of 
peonage had appeared so pronounced as to induce 
the military commanders to order that they be dis- 
regarded. This situation strengthened the resolu- 
tion, already well defined, to remove the possibility 
of a system of modified slavery under state sanction. 
It was feared that Congress would be unable to 
effect this purpose after the admission of the South- 

^ Trumbull; Globe, ist sess., 39th Cong., p. 475. 

" For a summary of this legislation, see McPherson, Reconstruc- 
tion, p. 29 et seq. For a Southern defence of the laws, see Herbert, 
Why the Solid South (Baltimore, 1890), p. 31 et seq. 



UNITED STATES IN RECONSTRUCTION 93 

em representatives. The end must be achieved 
before extending recognition to the new govern- 
ments, and acquiescence in the result could then 
be made a condition of the erring states' return. 

At first glance, the provisions of the bill appeared 
out of all relation to our constitutional system. 
Never before had Congress been known to arrogate 
to itself the power to regulate the civil status of 
the inhabitants of a state. The proposition that 
United States courts should assume jurisdiction of 
disputes relating to property and contracts, and 
even of criminal actions down to common assault 
and battery, seemed like a complete revelation of 
that diabolical spirit of centralization, of which only 
the cloven hoof had been manifested heretofore. 
But the supporters of the bill showed a clear 
appreciation of the change that the great conflict 
had wrought. They found a constitutional basis for 
the law in the Thirteenth Amendment. Slavery 
and involuntary servitude were by that article pro- 
hibited ; and, by the second section. Congress, and 
not the state legislatures, was authorized to enforce 
the prohibition. What constituted slavery and in- 
voluntary servitude, in the sense of the amendment } 
Slavery and liberty, it was answered, are contradic- 
tory terms. If slavery is prohibited, civil liberty 
must exist. But civil liberty consists in natural lib- 
erty, as restrained by human laws for the advantage 
of all, provided that these restraints be equal to 
all. A statute which is not equal to all is an en- 



94 



THE CONSTITUTION OF THE 



croachment on the liberty of the deprived persons, 
and subjects them to a degree of servitude. It is 
the duty of Congress, therefore, to counteract the 
effects of any such state laws. Thus the constitu- 
tionality of the bill was maintained. The essence 
of the plea was a wide construction of the terms 
** slavery" and "involuntary servitude." Broadly 
speaking, it was the practical application of what 
had heretofore been in the United States a mere 
theory, the idea of "equality" as an essential prin- 
ciple of "liberty." There was involved in this con- 
struction also a definite recognition of the national 
government as the protector of individuals against 
state oppression. 

The far-reaching consequences of this view of 
the Thirteenth Amendment filled the friends of 
the old system with dismay. They insisted that the 
only effect of the new article was to destroy the re- 
lation of master and slave. Beyond this no action 
of the central authority was contemplated. The 
second clause gave no power to Congress that was 
not already conferred by the old constitution.^ It 
was merely added to authorize the extension of the 
privilege of habeas corpus to a negro in case the 
master persisted in holding him.^ Upon the disso- 
lution of the old bond the freedman became subject 
to the laws of his state, like any other inhabitant. 
The idea that the amendment carried with it an 

1 Art. I, sec. 8, last clause. 

2 Cowan, of Pennsylvania; Globe, ist sess., 39th Cong., jv 499. 



UNITED STATES IN RECONSTRUCTION 95 

enormous centralization of power in the general 
government had never been heard of during the 
long discussion of the resolution in Congress. It 
was a recently devised scheme of the consolidation- 
ists to change the whole foundation of the govern- 
ment by interpretation. " Will anybody undertake 
to say," asked Cowan, "that that [amendment] was 
to prevent the involuntary servitude of my child to 
me, of my apprentice to me, or the ^//«i-/-servitude 
which the wife to some extent owes to her hus- 
band .? " Nothing but African slavery was referred 
to, and only its various modifications were included 
in '' involuntary servitude " ; the broad question of 
civil liberty was not affected. 

Whatever may have been the intention of the 
framers of the Thirteenth Amendment, the con- 
struction put upon it by Congress in the Civil 
Rights Bill was promptly adopted by the judiciary. 
The bill was vetoed by the President on the same 
general line of reasoning that was employed with 
respect to the Freedmen's Bureau Bill, but was 
immediately passed over the veto. Cases under 
its provisions came speedily before the circuit 
courts, where its constitutionality was questioned. 
Justice Swayne, in United States vs. Rhodes,^ sus- 
tained the act, saying : 

The amendment reversed and annulled the original policy 
of the constitution, which left it to each state to decide ex- 

1 I Abbot's U. S. Reports, 56. 



g6 THE CONSTITUTION OF THE 

clusively for itself whether slavery should or should not exist 
as a local institution, and what disabilities should attach to 
those of the servile race within its limits. 

Chief Justice Chase also took a similar position, 
holding that Maryland's apprentice laws, discrimi- 
nating between white and black apprentices, were 
in violation of the clause prohibiting involuntary 
servitude.^ The later amendments, however, re- 
lieved the courts of the heavy burden which hung 
upon them in basing equality in all civil rights 
upon the thirteenth alone. The construction of 
this amendment has been narrowed in later 
opinions, or rather, the tendency to widen it has 
been checked.^ 

In addition to the definition of '* slavery " and 
" involuntary servitude," the Civil Rights Bill un- 
dertook to fix the precise meaning of the phrase 
" citizen of the United States." The matter had 
been involved, up to this time, in hopeless confusion. 
No positive legal definition had been authorita- 
tively given. For general practical purposes, exact 
determination of the scope of citizenship had not 
been found necessary. Where any opinion at all 
had been pronounced, it had in most cases been 
in relation to the status of the free negroes. The 
weight of authority on this point was adverse to 
the claim of citizenship for the blacks. " No per- 

1 Turner's Case, i Abbot's U. S. Reports, 84. 

2 Cf. Blyew vs. U. S., 13 Wallace, 581 ; Slaughter House Cases, 
16 Wallace, 69; Civil Rights Cases, 109 U. S. 3. 



UNITED STATES IN RECONSTRUCTION 97 

son," said Attorney-General Wirt in 1821, "is in- 
cluded in the description of citizen of the United 
States, who has not the full rights of a citizen in 
the state of his residence."^ This principle had 
been in general the basis of the government's 
practice in all the departments. For native-born 
persons living within a state, citizenship of the 
state was the prerequisite for citizenship of the 
United States ; for persons of foreign birth, natu- 
ralization alone was necessary. The Dred Scott 
decision limited this rule by determining that state 
citizens of African descent could not be citizens 
of the United States. During the war, however, 
the old view was entirely overthrown in practice. 
Mr. Lincoln's attorney-general argued away all 
the precedents, and gave it as his official opinion 
that a free negro, born within the United States, 
was ipso facto a citizen thereof. ^ He assumed 
nativity as the broad basis of citizenship, univer- 
sally recognized as such by public law. With that 
assumption the status of United States citizen- 
ship was placed entirely beyond the reach of any 
state influence whatever, and a purely national 
conception was attained. 

This view was the one incorporated into the 
Civil Rights Bill. The declaration thus made 
by law was designed to end the uncertainty due to 

1 I Opinions of Attorneys-General, 507. Cf. Taney and Curtis 
in the Dred Scott Case. 

'^ McPherson, Rebellion, 378. 



gS THE CONSTITUTION OF THE 

conflicting authorities. Its abstract principle did 
not excite remonstrance so much as the deduc- 
tions drawn from it in the remainder of the bill. 
For while the immediate effect of the defini- 
tion was to make the freedmen citizens of the 
United States, the practical end of the other pro- 
visions of the bill was to make them also citizens 
of the several states in which they resided. This 
result was not stated in terms in the law, but was 
considered as a necessary corollary of the main 
proposition. The act gave to all citizens of the 
United States, in every state and territory, the 
same civil rights as were enjoyed by white citi- 
zens ; or, practically, declared to the states that, 
however they might widen the scope of their citi- 
zenship, they should never contract it so as to 
embrace less than the whole number of citizens 
of the United States residing within their respec- 
tive borders. 

To justify this sweeping enactment, the special 
conception of citizenship which the history of our 
institutions had developed was discarded, and the 
broad principle of public law was adopted in its 
place. All authorities agreed that the status of 
citizen implied the reciprocal duties of allegiance 
and protection.! A citizen of the United States, 

1 Cf. opinion of Attorney-General Bates; McPherson, Rebellion, 
p. 379. The employment of this relation as a basis from which to 
infer unlimited power to "protect," is discountenanced by the 
Supreme Court in U. S. vs. Cruikshank et al., 92 U. S. 549 : " In 



UNITED STATES IN RECONSTRUCTION gg 

then, was entitled to the protection of that gov- 
ernment to which allegiance was owed. But this 
protection was to operate against all sources of 
oppression, and if a state government happened to 
come in this category, it too must succumb. 



IV. Theories as to the Statics of the States 

The intense opposition which the Civil Rights 
Bill had excited permitted little hope that its pro- 
visions could remain permanently upon the statute 
book. Hence arose the movement to incorporate 
the principles of the bill in the constitution. 

The struggle for the passage of the law had 
involved the widest discussion of all the questions 
connected with reconstruction. Mr. Johnson had 
not only separated from the Republican leaders, 
but had placed himself in a position that rendered 
reconciliation inconceivable. Under such circum- 
stances, the conservative plan of dealing with the 
situation in the South, which could only be success- 
ful through the President's support, had to be aban- 
doned. Congress found itself obliged to formulate 
a theory of state status upon which it could rest 
for support in a decisive struggle with the execu- 

the formation of a government, the people may confer upon it such 
powers as they choose. The government, when so formed, may 
exercise all the powers it has for the protection of the rights of its 
citizens and the people within its jurisdiction; but it can exercise 
no other." 



100 THE CONSTITUTION OF THE 

tive. To the joint committee on reconstruction 
was entrusted the presentation of such a theory, 
and from this committee emanated the plan of re- 
organization which finally triumphed. Before con- 
sidering the committee's report, however, it will 
be profitable to examine the various theories in 
respect to reconstruction which had become promi- 
nent since 1863. While varying infinitely in de- 
tail, these theories may be summarized, as to their 
fundamental principles, in five classes, which may 
be denominated : the Southern theory, the Presi- 
dential theory, the theory of forfeited rights, the 
theory of state suicide, and the conquered-province 
theory. Of these the first two were based on the 
idea of the indestructibility of a state in our sys- 
tem, the last two on the contradictory assumption, 
while the third was in the nature of a compromise 
on this question. 

As preliminary to an examination of these 
theories it is necessary to determine as nearly as 
may be, what constituted the essence of the con- 
cept "state," under the a7ite bellum constitution. 
No attempt will be made, however, to discuss the 
question of sovereignty, or any other attribute held 
to exist outside of the organic law. "The word 
state," said Marshall, "is used in the constitution 
as designating a member of the Union, and ex- 
cludes from the term the signification attached to 
it by writers on the law of nations." 1 What can 
1 Hepburn and Dundas vs. Elkey, 2 Cranch, 452. 



UNITED STATES IN RECONSTRUCTION lOI 

be derived from the constitution itself as to the 
meaning of the term ? Three distinct uses of the 
word may be found in the supreme law. First, it 
designates a mere territorial division with definite 
boundaries ; second, it denotes the people, politi- 
cally associated, who inhabit the same region ; and 
third, it refers to the body politic within a defined 
region, involving the threefold notion of territory, 
people and government. This last sense of the 
word is by far the most frequent in the consti- 
tution, and accordingly the Supreme Court has 
framed the definition of a state thus : 

A political community of free citizens, occupying a territory 
of defined boundaries, and organized under a government 
sanctioned and limited by a written constitution, and estab- 
lished by the consent of the governed. ^ 

The theories to be examined may be viewed in 
the light afforded by this definition. The three 
essential elements of a state were held to be a 
geographical locality with determined limits, a com- 
munity inhabiting it, and a government organized 
by that people. At the close of the war, two prin- 
cipal questions arose as to the insurrectionary dis- 
tricts : first, did states exist in those districts ; and 
second, what was the relation of those states or 
districts to the government of the United States ? 

To the first of these questions the Southern 

1 Texas vs. White, 7 Wall. 721. Cf, Hunt, dissenting, in U. S. 
vs. Reese, 2 Otto, 350. 



102 THE CONSTITUTION OF THE 

theory, as has been stated, gave an afifirmative 
answer. All the essentials of state-being remained 
unchanged by the war. Territory, people and 
government conformed to the definition. The 
war had been waged by the North for the avowed 
purpose of suppressing an insurrection of individ- 
uals, and with no idea of interfering with the 
rights of the states. On individuals, then, all 
the consequences of the defeat must fall. But 
the states, it was admitted, were out of their con- 
stitutional relation to the general government. 
Their officers had taken no oath to support the 
constitution of the United States. No senators 
or representatives were acting for the states at 
Washington. The authority of the United States 
judiciary and revenue officials was not recognized 
by the state governments. But the result of the 
war had established the nullity of the acts upon 
which this severance of connection was based. 
The supposed separation was therefore unreal, 
and it became the duty of the officers to take the 
oath required by the constitution, of the legislat- 
ure to provide for the despatch of congressmen 
to Washington, and of the people of the state to 
submit to the authority of the courts and officials 
of the national government. These steps having 
been taken, the Union would stand under the con- 
stitution as before the war. 

It was upon this theory that the celebrated 
agreement between Sherman and Johnston was 



UNITED STATES IN RECONSTRUCTION 103 

made after the surrender of Lee.^ On the same 
principle, the rebel governors in most of the states 
convoked the legislatures to take action on the 
situation after the collapse of the Confederacy. 
It was the prevailing opinion throughout the 
South that the restoration would proceed on the 
lines of this theory.^ But the repudiation of Gen- 
eral Sherman's agreement by the administration, 
and the overthrow of the rebel state governments 
by the military commanders, dissipated the hopes 
of so simple an operation in readjustment, and 
finally disposed of any possible realization of the 
Southern idea. 

The Presidential theory of state status has been 
pretty clearly indicated in the discussion of its 
practical application. Its cardinal doctrine was 
the indestructibility of a state, either by its own 
act or by act of the United States government. 
At no time, either during actual conflict, or when 
the Southern arms had been laid down, did the 
United States consist of less component states 
than before the first secession. To assert the 
contrary was to admit the dissolution of the 
Union. The territorial and popular conditions 
of the constitutional state remained unchanged 
in every case. As to the state government, how- 
ever, a defect existed, brought about indirectly 
through the immediate relation of the people to 

1 McPherson, Reconstruction, 121. 

2 Pollard, The Lost Cause Regained, p. 51. 



104 THE CONSTITUTION OF THE 

the national government. All the officers as well 
as the constituents of the rebel organizations were 
insurgents, and hence incapable of political recog- 
nition by the United States authorities. With the 
removal of this disability, the ante-bellum status 
returned. But until such removal, the vitality of 
the state was suspended through the incapacity 
of its organs to fulfil their functions. The Presi- 
dent's pardon was the healing agent. Restored 
by it to normal relations with the general govern- 
ment, the people of the states became immediately 
invested with the right to establish their own will 
in organized form, and with the right to assume 
the former relation with the Union. 

In these two theories, the Southern and the 
Presidential, the ultimate principle is obviously 
the resolution in favor of the states of all doubts 
arising out of the anomalous condition of affairs. 
Both alike relied for support upon the sentiment 
which the Republican platform of i860 expressed 
in these words: *'The maintenance inviolate of 
the rights of the states is essential to the balance 
of power on which the prosperity and endurance 
of our political fabric depend,"^ and both alike 
adopted that view of the consequences of the war 
which corresponded to the statement of its object 
in the Crittenden resolution in Congress, in July, 
1 86 1, namely, " to defend and maintain the suprem- 
acy of the constitution, and to preserve the Union, 

1 Tribune Almanac for 1861, p. 30. 



UNITED STATES IN RECONSTRUCTION 105 

with all the dignity, equality and rights of the 
several states unimpaired." 

Charles Sumner's famous theory of state suicide 
was the first of those which maintained that no state 
as known to the constitution existed on Southern 
soil at the close of the war. The enunciation of 
the theory was originally embodied in a series of 
resolutions offered in the Senate in 1862.1 The 
basis of the series is contained in the declaration 
that any act by which a state may undertake to 
put an end to the supremacy of the constitution 
within its territory is void, and, if sustained by 
force, such act is a practical abdication by the state 
of all rights under the constitution. Further, the 
treason involved in this resistance works instant 
forfeiture of the powers essential to the continued 
existence of the state as a body politic, and the 
state is, in the language of the law, felo de se. But 
the territory of the extinct commonwealth belongs 
irrevocably to the United States, and consequently 
becomes henceforth subject to the exclusive juris- 
diction of Congress, like other territory of the 
nation. The immediate consequence of these 
principles, was, of course, the termination of all 
peculiar local institutions, based solely on state 
authority. Slavery ceased to exist, and all the 
inhabitants of the territory, since they owed alle- 
giance to the United States, must look to the 
national government for protection. 

1 McPherson, Rebellion, p. 322. 



I06 THE CONSTITUTION OF THE 

In Mr. Sumner's view, the three attributes in- 
volved in the definition mentioned above do not 
constitute the state known to the constitution. A 
fulfilment of the duties imposed by the funda- 
mental law is indispensable to the conception. 
There can be no such an entity as a state out of 
practical relations with the United States. A 
state exists only by virtue of the maintenance of 
these relations. Certain obligations are imposed 
by the constitution upon the states, and certain 
privileges are accorded to them. Refusal to 
acknowledge the obligations works ipso facto a 
forfeiture of the privileges. Among the obliga- 
tions is that fundamental one of recognizing the 
supremacy of the constitution and laws of the 
United States ; among the privileges is the enjoy- 
ment of governmental rights not attributed to the 
central organization. Rejection of the former 
works forfeiture of the latter. But the immediate 
relation between the people and the general gov- 
ernment is not at all affected. This government, 
therefore, becomes the sole authority for the regu- 
lation of their concerns. The inhabitants may 
organize themselves for admission as states, but 
Congress may impose its conditions upon them 
before granting their application. It may fix their 
boundaries at its pleasure and thus destroy every 
vestige of the former states. In short, where once 
existed sovereign states, only the territorial status 
survived the ordinance of secession. 



UNITED STATES IN RECONSTRUCTION 10/ 

The ultimate principle of this theory is that the 
United States is a nation, of which the constitution 
is the sovereign law. By the nation, through the 
constitution, certain powers are conferred upon 
people living in a given district. In these powers 
consists the essence of a " state." "A state under 
the American system," says an able advocate of 
the suicide doctrine, "is not in the domain and 
population fixed to it, nor yet in its exterior organ- 
ization, but solely in the political powers, rights 
and franchises which it holds from the United 
States, or as one of the United States." ^ It was 
by an act of free will on the part of the communi- 
ties that they assumed these rights, and, by the 
permission of Congress, became states. A similar 
act of free will is sufficient to resign these rights, 
and to revert to that condition which preceded 
their assumption. " Nothing hinders a state from 
committing suicide if she chooses, any more than 
there was something which compelled the territory 
to become a state in the Union against its will." 
But however frequent may be the shuffling on and 
off of the state form, the United States, as territo- 
rial sovereign by virtue of natural laws far beyond 
the reach of local action, remains unaffected. 

The conquered-province theory, which was held 
chiefly by Thaddeus Stevens, coincided with that 
of Mr. Sumner in respect to the effect upon the 
states of their own acts. They became non-exist- 

^ Brownson, The American Republic, p. 290. 



I08 THE CONSTITUTION OF THE 

ent as states. But Stevens maintained that the 
course of the United States government had made 
it impossible to concede that they possessed, after 
their subjection, even the attributes of territories 
under the constitution. On Sumner's principle, 
the people of the South, upon submission to the 
national forces, became entitled to the rights of 
United States citizens, as guaranteed by the con- 
stitution and exercised prior to the erection of 
the state organization. They had been treated as 
belligerent enemies only so far as it was necessary 
in order to bring them under the power of the gov- 
ernment as traitorous citizens. The government's 
right to treat them in either capacity had been af- 
firmed by all departments, and acted upon by all. 
But Stevens regarded all the nice constructions of 
law by which this end was attained as forced and 
unreal. He appealed to the actual facts of the 
case, and asked if any one could look at the mili- 
tary rule controlling the South and say that it 
was not, in reality, the dominion of a conqueror. 
Neither during the war, nor at its close, had any 
constitutional limitation been regarded that stood 
in the way of making the Southern people subject 
to the absolute will of the United States govern- 
ment. Such had come to be their condition, and 
in no respect did it differ from that of a conquered 
foreign foe. By proclamation of the executive, by 
law of Congress and by decision of the judiciary, 
the people of all the states in insurrection had been 



UNITED STATES IN RECONSTRUCTION 109 

declared public enemies ; as such they had been 
subdued by the armies of the nation ; by their own 
act they had rejected the authority of the consti- 
tution, and it was not for them now to claim any 
rights under that instrument. Whatever might be 
the technical pleadings of the lawyers, the plain 
facts of the situation were that the lives, the liberty 
and the property of all the South were, by virtue 
of conquest, at the absolute disposal of the govern- 
ment. The principles of international law might 
guide the settlement, if the government chose, but 
no provision of the domestic constitution had any 
binding force whatever. 

From the theories of Sumner and Stevens, as 
well as from those of the Southerners and the Presi- 
dent, conclusions were deduced which were very 
unpalatable to the majority of thinking men of the 
day. The possibility of arguing away the exist- 
ence of a state was an idea quite as offensive as 
that of immediately conceding autonomy to the 
recreant commonwealths. On the one hand the 
historic conception of the nation as a federal 
union seemed threatened with destruction ; on the 
other hand, there appeared no guarantee of politi- 
cal results at all commensurate with the military 
triumph of the Unionists. 

It was in consequence of this dilemma that the 
theory of forfeited rights was matured. Standing 
midway between the extreme doctrines, it embraced 
some feature of each of the rival theories, and 



no THE CONSTITUTION OF THE 

like every compromise, it was deficient in a con- 
sistent relation of its parts. Its supporters would 
not concede that any state had been or could be 
out of the Union. But, they argued, the insurgent 
communities, while still integral parts of the nation, 
are not in the enjoyment of all the rights which, 
in a normal condition, a state may enjoy. That 
element of the state which is designated the 
people, should be in strictness called the politi- 
cal people. This political people has committed 
a political crime against the nation. But just as 
the individual who violates the civil law of society 
forfeits his civil rights in that society, so the com- 
munity which offends against the political order of 
the nation may lose its political rights at the will 
of the sovereign. In no other way can the integ- 
rity of the nation be secure. Now the agent of 
the sovereign, in adjudging the extent and duration 
of the punishment to be visited upon the recreant 
commonwealths, is Congress. This is evident from 
the very nature of government ; but it is also im- 
mediately sanctioned by the constitution. For the 
United States is directed by that instrument to 
guarantee to every state a republican form of gov- 
ernment. The nation thus becomes the final arbiter 
as to the status of a state. But Congress is em- 
powered to make all laws necessary and proper to 
carry into effect the granted powers. Congress, 
therefore, and not the President, is to direct the 
rehabilitation of the states. Finally, the constitu- 



UNITED STATES IN RECONSTRUCTION III 

tion, and laws made in pursuance thereof, must be 
the supreme law of the land ; under this clause the 
power of the legislature in the matter becomes 
indisputable. Neither the state nor the executive 
can claim any rights or authority as against the 
constitutional law-making organ of the government. 

In many points the theory of forfeited rights ap- 
proached very near to that of Sumner. It might 
be said, in general, that the only difference between 
them consisted in a mere abstraction. Sumner held 
that the states did not exist; the forfeited-rights 
theory refrained from stating the idea in that 
form, but held in fact that they should be con- 
sidered, at the pleasure of Congress, in a condition 
of suspended animation. But on the hypothesis 
of state suicide, the very boundaries of a com- 
monwealth might be obliterated, and its identity 
utterly destroyed ; the rival theory drew the line 
here, and, while placing the vital principle of 
political rights at the mercy of Congress, made to 
conservative sentiment the cheap concession of 
territorial indestructibility. 

The President's theory also seemed at some 
points to follow quite closely the lines of the for- 
feited-rights doctrine. Mr. Johnson himself de- 
scribed the condition of the rebel states in respect 
to the exercise of their governmental rights, as that 
of suspended animation.^ But the condition was not 

1 See his remarks to citizens of Indiana; McPherson, Recon- 
struction, p. 46. 



112 THE CONSTITUTION OF THE 

recognized as arising from the forfeiture of any 
of the rights they once possessed. Only in the 
retention of each and every one of such rights did 
he see the maintenance of the integrity of the 
states. The suspended animation was the conse- 
quence of a concrete state of affairs among the 
people of the state, and was not at all dependent 
upon the will of any political body outside of that 
community. Congress, in fine, the President held, 
had no power to deprive a state of any right as a 
penalty for the crimes of the people of the state. 
It was that power, however, which the national 
legislature, supported by the great mass of the 
Northern people, finally determined to exercise. 



V. The Congressional Plan of Restoration 

From the theories just outlined, and the multi- 
tude of views by which opinion shaded imper- 
ceptibly from one to the other of the definite 
doctrines, the reconstruction committee was called 
upon to formulate a creed upon which the majority 
in Congress could stand united. Concession had 
to be made to all the various shades of opinion 
among Republicans. The report, therefore, em- 
bodied some feature of nearly all the theories, but 
the combination was such as to bring into clearest 
definition the doctrine of forfeited rights.^ 

1 For the report, see McPherson, Reconstruction, p. 84. 



UNITED STATES IN RECONSTRUCTION 113 

In the first place, the committee adopted the 
view which the President had once proclaimed, 
that, at the close of the war, the people of the 
rebellious states were found " deprived of all civil 
government." The de facto governments set up 
during the rebellion were illegal, so far as the 
United States government was concerned, and the 
attempt to legalize them by force had failed. At 
the cessation of hostilities, then, the Southern 
states were disorganized communities, and subject 
only to military dominion. The President, in his 
capacity as commander-in-chief of the army, how- 
ever, had no authority to deal with the restoration 
of civil government. He appointed provisional gov- 
ernors, who were, however, mere military officials. 
Through these officials the people of the disor- 
ganized communities adopted certain systems of 
government; but these were nothing more than 
phases of the President's military sway. There 
was nothing of a permanent nature in them, and 
their establishment had no effect as against any 
regulation that should be adopted by the law- 
making power in reference to the final adjustment 
of relations with the states. 

We cannot regard the various acts of the President in rela- 
tion to the formation of local governments in the insurrection- 
ary states ... in any other light than as intimations to the 
people that as commander-in-chief of the army, he would con- 
sent to withdraw military rule, just in proportion as they should 
by their acts manifest a disposition to preserve order among 



114 THE CONSTITUTION OF THE 

themselves, establish governments denoting loyalty to the 
Union, and exhibit a settled determination to return to their 
allegiance ; leaving with the law-making power to fix the 
terms of their final restoration to all their rights and privileges 
as states of the Union. 

In meeting the conservative proposition that a 
state, under the constitution, must be either in the 
Union, with all rights absolutely recognized, or out 
of it, with no rights whatever, the committee's 
principle denied the completeness of the disjunc- 
tion, and rested on the conception of a state with 
full rights, but with those rights in abeyance by 
virtue of circumstances demanding recognition by 
the supreme national government. 

This view of the condition of the states was 
evidently that of the forfeited-rights theory. In 
deference to the conquered-province idea, however, 
the committee reminded the states that, ''whether 
legally and constitutionally or not, they did, in 
fact, withdraw from the Union, and made them- 
selves subject to another government of their own 
creation." The moral of this was that from one 
point of view "the conquered rebels are at the 
mercy of the conquerors." In such a situation, 
it was held to follow that the government had 
a right to exact indemnity for the injuries done, 
and to take security against the recurrence of such 
outrages. The concession to Stevens was thus 
utilized as a basis for the great maxim of the for- 
feited-rights school, "indemnity for the past and 



UNITED STATES IN RECONSTRUCTION II5 

security for the future." Sumner's doctrine was 
also deferred to with much respect. The territorial 
unity of the nation was insisted upon, and it was 
denied that any portion of the people of the nation 
had the right, while remaining on its soil, to with- 
draw from or reject the authority of the United 
States. They might destroy their state govern- 
ments, and ''cease to exist in an organized form," 
but this in no way relieved them from their obli- 
gations under the constitution and the laws. The 
distinction was marked between the destruction 
of the states and the overthrow of the state gov- 
ernments. "The states," it was held, "may cease 
to exist in an organized form"; so far, but no 
farther, was the possibility of state destruction 
conceded. The constitution acts upon the people 
directly, and not upon the states as such ; only by 
act of the people, therefore, may the states become 
amenable to the disciplinary power of the national 
government. 

The conclusion of the committee, accordingly, 
was that the so-called Confederate states, having 
forfeited all civil and political privileges under the 
constitution, were not entitled to representation. 
Before allowing it, security for future peace and 
safety should be required. This could be obtained 
only by changes in the organic law with a view to 
determine the civil rights and privileges of citizens 
in all parts of the republic, to place representation 
on an equitable basis, to fix a stigma upon treason, 



Il6 THE CONSTITUTION OF THE 

to protect loyal people against future claims for 
the losses sustained in support of rebellion and by 
the emancipation of slaves, and to grant express 
power to Congress to enforce these provisions. 

There is manifest in the view thus set forth the 
same tendency to blend purely constitutional con- 
ceptions with the broader notions of international 
law that is seen in the theory of the war power 
employed during hostilities. It is only through 
this tendency that the exaction of indemnity be- 
comes prominent. The general sentiment against 
the infliction of penalties for treason upon individ- 
uals, together with the conviction that punishment 
should be visited upon something, resulted in a 
transfer of the consequences of rebellion from the 
individual to the state. Any difficulties in the way 
of such a transfer were readily avoided by the 
resort to precedents of international warfare. 

A month previous to the presentation of the 
committee's report, the measures necessary to 
the application of its principles had been submitted 
to Congress. The conditions which were regarded 
as necessary to be imposed upon the South were 
embodied in a proposition for a fourteenth amend- 
ment to the constitution. Accompanying the reso- 
lution were two bills to supplement it in carrying 
out the committee's plan. By one it was provided 
that whenever any state lately in insurrection 
should ratify the proposed amendment to the con- 
stitution, and should modify its constitution and 



UNITED STATES IN RECONSTRUCTION 117 

laws in conformity therewith, the members from 
that state might be admitted into Congress as such. 
The companion bill declared ineligible to any office 
under the United States government all persons 
included in five specified classes, substantially the 
same as those exempted from amnesty by the 
President's early proclamation.^ 

In its general features this plan announced by 
Congress resembled that by which the President 
had effected restoration. A constitutional amend- 
ment was proposed, the adoption of which was the 
prime condition of recognition. But it was not 
deemed necessary to provide for governments 
through which state action should be taken. The 
Johnson organizations, while stigmatized as mere 
military concerns, were yet recognized as suffi- 
ciently representative in their character to express 
the will of the states. Such recognition consti- 
tuted a vital flaw in the consistency of the Congres- 
sional plan. If those governments were competent 
to ratify an amendment to the constitution of the 
United States, it was insisted that the states which 
organized them were entitled to representation in 
the national Congress. The Thirteenth Amend- 
ment had become of effect through its adoption 
by the Johnson governments.^ Much abuse was 
heaped upon Mr. Seward for his action in recog- 
nizing the right of the rebel states to vote on 

1 For the bills, see McPherson, Reconstruction, p. 103. 

* See proclamation by Seward; McPherson, Reconstruction, p. 6. 



Il8 THE CONSTITUTION OF THE 

this matter,^ but his method was found worthy of 
adoption. 

The content of the proposed Fourteenth Amend- 
ment marks very accurately the progress that had 
been made by the spring of 1866 in ideas as to 
the extent to which reconstruction should go. In 
the first section, the desire of the conservative 
Republicans to put the civil rights of the negroes 
under the protection of the United States was 
gratified. The fourth guaranteed the financial 
integrity of the government, and thus satisfied 
those who feared some assertion of state rights 
that might legalize debts incurred in opposition to 
the national authority. These two provisions con- 
stituted the limitations upon the powers of the 
states that were generally recognized as unavoid- 
able consequences of the war. The second section 
of the amendment dealt with matters upon which 
opinion in the dominant party was far from certain 
and harmonious. It embodied a very clumsy and 
artificial solution of the suffrage problem. The 
alternative presented to the states, of enfranchis- 
ing the blacks or losing proportionally in represen- 
tation, was a mere temporary compromise between 
two party factions. It was the most that the 
friends of negro suffrage could secure at this stage 
of the process; but there was no indication that 
they would be satisfied with this. The third sec- 
tion of the amendment was merely incidental to 

* E.g., Scofield, of Pa.; Globe, 2d sess., 39th Cong., p. 598. 



UNITED STATES IN RECONSTRUCTION 1 19 

the conflict between Congress and President John- 
son. The President's very free exercise of the 
pardoning power interfered with the progress of 
the legislature's policy, and no method of checking 
this interference seemed so feasible as a constitu- 
tional amendment. As a whole, the amendment 
was tentative. It betokened a longing for a 
definite settlement of the two great questions of 
the day, tempered by dread of an adverse public 
sentiment. 

The bills which accompanied the resolution con- 
taining the amendment were not acted upon dur- 
ing the first session of the Thirty-ninth Congress, 
and the full inauguration of the committee's plan, 
therefore, was not accomplished. The first steps 
having been taken, it was considered well to await 
the action which the Southern states should take 
in the matter, and especially to ascertain the result 
of the autumn elections in the North, before mak- 
ing any further advances. 

Only in the case of Tennessee was this policy 
departed from. In that state the radical Union 
Party had in the previous year secured firm con- 
trol of the government, and had adopted measures 
rigorously excluding their opponents from any 
share in its organization. The Fourteenth Amend- 
ment was promptly ratified by the legislature, 
though not without some doubts as to the regu- 
larity of the proceedings,^ and Congress not less 

1 Ann. Cyclopedia, 1866, p. 729. 



120 THE CONSTITUTION OF THE 

promptly declared Tennessee restored to the 
Union. In the preamble to the resolution restor- 
ing the state, the ground of the act was explained 
in accordance with the theory that Congress had 
adopted. The conditions considered necessary, 
it was stated, had been fulfilled, and, moreover, 
acts "proclaiming and denoting loyalty" had 
been performed by the new state government. 
These acts, not named in the law, were in fact 
the disfranchisement of all partisans of the 
Confederacy and various steps looking to negro 
suffrage. 

It was to the attainment of these ends — dis- 
franchisement and enfranchisement, in some de- 
gree — that a steadily growing sentiment had 
been directed from the beginning. Scruples as to 
the constitutionality of any interference by Con- 
gress with the hitherto sacred right of a state to 
regulate the qualifications for voting within its 
boundaries, had alone prevented the requirement 
of negro suffrage, at least, as a condition of restora- 
tion. The moderate Republicans desired that this 
regulation should be made by the voluntary act of 
the Johnson organizations. Till every hope of such 
a consummation was exhausted, the forfeited-rights 
school of thinkers preferred to lean toward the 
conservative theories of state status. Two events 
converted this tendency into an unmistakable 
swerve toward the opposite extreme. These were, 
the rejection of the Fourteenth Amendment by 



UNITED STATES IN RECONSTRUCTION 121 

the legislatures of the ten states still unrestored, 
and the overwhelming defeat of the President's 
supporters in the Congressional elections. 

VI. Military Reconstruction 

An exhaustive discussion of the further prog- 
ress of reconstruction in its relation to the con- 
stitution would involve an examination in more or 
less detail of the conflict between Congress and 
the other great departments of the government. 
Such examination, however, is without the scope 
of this essay. The fruitless impeachment of Pres- 
ident Johnson was the climax of the legislature's 
struggle with the executive. As to the judiciary, 
a hostility to the radical tendency of Congress 
was unmistakably manifested in the cases of Milli- 
gan,^ Cummings and Garland.^ The conservative 
character of these decisions aroused a feeling of in- 
tense bitterness against the Supreme Court. Many 
laws were proposed looking to a curtailment of its 
appellate jurisdiction, and the suggestion was not 
wanting that even the original jurisdiction in cer- 

1 Discussed supra, p. 45 et seq. Thaddeus Stevens regarded 
this decision as scarcely less infamous than that in the Dred Scott 
Case, and as much more dangerous to liberty. Globe, 2d sess., 
39th Cong., p. 251. 

2 4 Wallace. In these two cases a state and a federal test oath, 
designed to exclude rebels from exercising the functions of clergy- 
man and attorney respectively, v^ere held unconstitutional, as ex 
post facto laws. 



122 THE CONSTITUTION OF THE 

tain cases secured to it by the constitution might 
be taken away by an amendment.^ Whether the 
menaces directed against the judiciary had some 
effect, or whether adherence to the traditional 
policy of the court to avoid conflict on political 
questions with the legislature was sufficient, it is 
certain that the will of Congress met with no 
adverse opinion during the remainder of the re- 
construction era. 

The further and final action of Congress in 
bringing about the reorganization of the South- 
ern commonwealths, is marked by a gradual but 
certain relinquishment in fact of the theory of 
state status which had been previously adopted 
and which was still adhered to in name. Each 
successive step rendered more and more obscure 
the connection with the forfeited-rights idea. 
Hitherto, by this theory, the will of the states, 
as expressed by the historical constituency of the 
states, had been recognized as entitled to at least 
the consideration involved in its assent to the con- 
ditions of restoration imposed by the national au- 
thority. Henceforth, the will of the nation is 
asserted without reference to that of the state. 
The process of military reconstruction, in its lead- 
ing features, follows closely the lines of the theory 
of state suicide. 

Through the rejection of the Fourteenth Amend- 
ment by the Southern states, the process of res- 

Bingham; Globe, 2d sess., 39th Cong., p. 502. 



UNITED STATES IN RECONSTRUCTION 1 23 

toration proposed in the committee's report was 
brought to a standstill. It was evident that the 
Southern whites would not consent to the admis- 
sion of the blacks to the polls. In the North, the 
hot campaign in the fall elections of 1866 resulted 
very favorably to the friends of negro suffrage. 
Supported by a strong and growing public senti- 
ment, the radicals now devoted their energies to 
the task of making the black vote the basis of re- 
construction. This involved of necessity the sub- 
ordination of the old political people of the various 
states to a new political people created by Con- 
gress. In this fact lay the practical triumph of 
the Sumner theory. 

The law which finally inaugurated the work of 
military reconstruction was passed, over the Presi- 
dent's veto, March 2, 1867. It declared that no 
legal state governments existed in ten states of 
the Union, and no adequate protection for life or 
property. The deficiency was made good by plac- 
ing the said states under the military authority 
of the United States, and dividing them into five 
military districts with an officer of rank not less 
than brigadier-general at the head of each. The 
existing state governments were not abolished, 
but the sixth section of the bill enacted that any 
civil government which might exist in any of the 
states before its representatives were admitted to 
Congress should be deemed provisional only, and 
in all respects subject to the paramount authority 



124 THE CONSTITUTION OF THE 

of the United States. In the fifth section of the 
act were stated the conditions on which repre- 
sentatives would be admitted and military gov- 
ernment withdrawn. Here the triumph of the 
radicals was manifest ; in addition to the ratifi- 
cation of the Fourteenth Amendment, it was re- 
quired that a state constitution should have been 
framed by a convention chosen by all male citi- 
zens of the state of proper age, " of whatever race, 
color or previous condition," and that, in that 
constitution, the same qualifications for the elec- 
toral franchise should be ordained. The act itself 
disfranchised and declared ineligible to the con- 
vention all who were excluded from office by the 
proposed Fourteenth Amendment. In short, full 
enfranchisement of the blacks and disfranchisement 
of the leading whites were required as conditions 
precedent to the enjoyment of the rights of a state. 
The theory of a voluntary acceptance of these 
terms by the states was still nominally adhered 
to ; but no provision appeared in the act for the 
initiation of any movement for the fulfilment of 
the conditions. Such a movement could scarcely 
be expected of the existing governments, which 
had rejected the Fourteenth Amendment, and 
which were by the act declared illegal. On the 
23d of March, 1867, the Fortieth Congress, by 
the supplementary reconstruction act of that date, 
took into its own hands the whole process of 
reorganizing the recalcitrant districts. To the 



UNITED STATES IN RECONSTRUCTION 1 25 

military commander of each district was assigned 
the duty of causing to be made a registration of 
voters qualified under the act of March 2, and of 
holding elections for delegates to a constitutional 
convention in each state. The work of the con- 
vention was afterward to be submitted to the 
voters for ratification, all under the immediate 
control of the military commanders. 

To overcome the conservative constructions of 
the law which were adopted by the administration, 
still another supplementary act was passed on the 
19th of July. Attorney-General Stanbery, in con- 
struing the first two laws, had declared that the 
military authority was to be used only as auxiliary 
to the existing civil governments in the rebel 
states. The new act declared that those govern- 
ments, if continued, were to be subject in all 
respects to the military commanders. Their oflfi- 
cers could be removed at the will of the officer in 
command of the district. Further, practically un- 
limited discretion was conferred upon the register- 
ing officers as to who should be put upon the lists 
of voters. And finally, to thwart effectually the 
hostile influence of the administration, the Gen- 
eral of the Army was invested with the final 
authority in the removal and suspension of offi- 
cers, and no commander concerned in carrying 
out the acts was to be bound by any opinion of 
any civil officer of the United States. This last 
provision was aimed at the attorney-general. 



126 THE CONSTITUTION OF THE 

The three acts just outlined contain all the 
essential principles of the process by which re- 
construction was actually accomplished. The chief 
features of the process were : first, the overthrow 
of ten state governments that had been organized 
under the Presidential proclamations ; second, the 
establishment of military government in the dis- 
organized districts ; and third, the determination 
by Congress of the qualifications of voters, not 
only for the immediate purpose of reorganization, 
but also for all the future existence of the common- 
wealths. 

As to the first point, the action of Congress 
was entirely consistent with the ground it had 
taken at the beginning of its struggle with the 
President. It had steadily declined to recognize 
the organizations set up under Mr. Johnson's 
guidance as anything more than provisional. The 
status of a state that had forfeited its rights pre- 
cluded the exercise of self-government until those 
rights had been restored. Under the radical ten- 
dency imparted to the legislature by the autumn 
elections of 1866, Stevens succeeded in embody- 
ing his conquered-province theory in the preamble 
to the first military bill as it passed the House.^ 
The Senate, however, toned down the clause so as 
to avoid declaring the states extinct. In its final 
form, the act stigmatized them as ''rebel states." 
Exactly what a "rebel state" is was not stated. 
1 Globe, 2d sess., 39th Cong., p. 1037. 



UNITED STATES IN RECONSTRUCTION 12/ 

By the radicals, the expression was regarded as 
conceding their claim that a state, as a corporate 
entity, could commit the insurrectionary act, and 
so draw upon itself the penalty of forfeiting its 
rights. The more moderate school, on the other 
hand, maintaining that rebellion was a crime of 
which only the individual could be guilty, con- 
strued the phrase as signifying a state whose 
inhabitants were wholly or chiefly rebels. But 
whether the state was extinct or merely with- 
out rights, the authority of the national gov- 
ernment over its territory and people was 
equally indisputable. And of this national gov- 
ernment, Congress was the responsible directing 
agency. 

The second feature of the process gave rise to 
vehement discussion in Congress. What was the 
ground of justification for the imposition of purely 
military government on the rebel states } Assum- 
ing that the whole question was extra-constitu- 
tional, and that only the law of nations controlled 
Congress, there was no difficulty. Stevens and 
his followers had plain sailing. But if the rebel 
districts were still states, and their people citizens 
of the United States, how could the proclamation 
of martial law and the substitution of the military 
commission for the jury court be reconciled with 
the Bill of Rights } The most obvious answer 
was that the act assumed the existence of one 
of those cases of rebellion or invasion in which 



128 THE CONSTITUTION OF THE 

the constitution authorizes Congress to suspend 
the ordinary safeguards of civil liberty. All ad- 
mitted that the judgment of the legislature as to 
when such a case had arisen was final. But as a 
mere question of fact, the existence of rebellion 
or invasion in 1867 was far from being clearly 
demonstrable. In spite of reports of outrages upon 
freedmen and Unionists in various parts of the 
South, which partisan zeal magnified ad libitum^ 
it could not be made to appear that the situation 
was such as in itself to involve rebellion. The 
moderates were therefore compelled to fall back 
upon the assumption that the old war had not yet 
technically ended. For the benefit of this class, the 
radicals, though troubled with no scruples them- 
selves, resurrected an ancient Latin phrase, bello 
non flagrante sed nondum cessante^ and pointed out 
that bello nondum cessante was recognized in inter- 
national law as one phase of warfare. Such was 
the situation now in the Southern states. ^ " A re- 
bellion," said Shellabarger, "is simply crushed by 
war, by the arms of the republic, but is still suffi- 
ciently strong to overthrow and defy the courts in 
nearly half the territories of the republic. That is 
a state of things contemplated by your constitu- 
tion." The war power, in all its completeness, was 
therefore in the hands of Congress, and would 
continue to be until state governments were recog- 
nized. 

1 Globe, 2d sess., 39th Cong., p. 1083. 



UNITED STATES IN RECONSTRUCTION 1 29 

The difficulty with this theory was that it put 
the legislature in distinct contradiction to both 
itself and the other two departments of the gov- 
ernment. For by proclamations of April 2 and 
August 20, 1866, the President had announced 
that the insurrection once existing in the eleven 
specified states was at an end.^ His right to de- 
cide this, as a mere military fact, was never seri- 
ously questioned. Congress itself, in at least one 
instance, recognized the date of the last proclama- 
tion as ending the war.^ The Supreme Court, in 
its first opinion on the question,^ expressly declined 
to discuss whether the rebellion could be considered 
as suppressed for one purpose and not for another, 
but in the case before it, accepted the date of the 
President's final proclamation. Later, Chief Jus- 
tice Chase, on the ground that some act of a politi- 
cal department must be regarded as conclusive, 
decided, without reservation, that the executive 
must be followed.* 

There is but one theory on which the setting up 
of military government in the Southern states by 
Congress can be made to harmonize with the view 
of the other departments as to the termination of 
the rebellion, and that is, that the alleged inade- 

1 McPherson, Reconstruction, pp. 15 and 194. 

2 Public Acts, 39th Cong., 2d sess., ch. cxlv, sec. 2. 

* U. S. vs. Anderson, 9 Wallace, 56. 

* The Protector, 12 Wallace, 700. Cf. Brown vs. Hiatts, 15 
Wallace, 184, and Balesville Inst. vs. Kauffman, 18 Wallace, 155. 

K 



130 THE CONSTITUTION OF THE 

quate protection for life or property in the rebel 
states in 1867 constituted a new "case of rebellion 
or invasion," which justified the establishment of 
martial law. But on this supposition there would 
be a direct collision between Congress and the 
judiciary at another point. In the case of Milligan 
the Supreme Court declared with unmistakable 
emphasis that " martial rule can never exist where 
the courts are open, and in the proper and un- 
obstructed exercise of their jurisdiction." Yet in 
the states which were relegated by Congress to 
the unlimited dominion of officers " not below the 
rank of brigadier-general," the ordinary courts, 
both local and federal, had transacted their regular 
business for nearly two years. 

In reference to the third and perhaps the most 
important feature of the Reconstruction Acts, the 
legislature and the judiciary are in harmony, though 
the difficulty of reconciling their doctrine with the 
earlier interpretations of the constitution is in- 
superable. Congress enacted that new state gov- 
ernments should be organized by a political people 
differing in toto from that which had formerly been 
recognized as the basis of the commonwealths. 
The leaders of the Southern whites were excluded 
from any part in the reconstruction ; the freedmen 
were awarded the ballot, and were relied upon to 
accomplish the formation of state governments. 
Two questions arose in connection with these acts: 
first, by what authority did the national legislature 



UNITED STATES IN RECONSTRUCTION 131 

direct the organization of new governments in the 
rebel states ; second, by what authority did Con- 
gress prescribe the quaUfications of electors for the 
operation? The answer to both questions was: By 
virtue of the guarantee clause of the constitution. 
Forfeited-rights, state-suicide and conquered-prov- 
ince theories all agreed that Congress was the 
proper organ to provide for the re-establishment 
of state governments. By only the first, however, 
was an indefinite continuance of the existing con- 
dition of affairs considered anomalous. Sumner 
and Stevens saw no states existing in the South, 
and therefore felt no need of haste in the erection 
of states there. The less radical thinkers saw 
states without governments, and insisted upon the 
speediest termination of such a paradox. 

It is declared by the constitution that "the 
United States shall guarantee to every state in 
this Union a republican form of government." 
The intention of the framers of the constitution 
in this clause was precisely stated by Madison in 
The Federalist, number 43: "The authority ex- 
tends no further than a guaranty of a republican 
form of government, which supposes a pre-ex- 
isting government of the form which is to be 
guaranteed." ^ A practical application of the 
clause had been demanded in connection with the 
Dorr rebellion in Rhode Island. The malcontents 
sought to secure interference by the general gov- 

1 Cf. also Elliott's Debates, V, 128, 182, 333. 



132 THE CONSTITUTION OF THE 

ernment on the ground that the limitation of the 
franchise under the old charter organization was 
unrepublican. President Tyler, however, wrote to 
Governor King : " It will be my duty to respect 
that government which has been recognized as the 
existing government of the state through all time 
past." ^ In other words, the term " guarantee " 
was understood to express a corrective and not a 
creative power. As Webster put it before the 
Supreme Court in 1848 : 

The law and the constitution go on the idea that the states 
are all republican, that they are all representative in their 
forms, and that these popular governments in each state, the 
annually created creatures of the people, will give all proper 
facilities and necessary aids to bring about changes which the 
people may judge necessary in their constitutions.^ 

There can be no doubt that the construction of 
the guarantee clause embodied in these passages 
was the recognized principle of the law prior to 
1867. Only by a complete rejection of the old 
interpretation could the moderates derive from the 
constitution the power of Congress to organize a 
government for a state. To maintain themselves 
in their somewhat unsteady position that a state 
could not perish, they wrenched the guarantee 
clause wholly away from its history. Nor was 
their violence successful. For to the impartial 
reader, the act of March 23, 1867, is much more 

1 North American Review^ vol. 58, p. 398. 

2 Works, VI, 231. 



UNITED STATES IN RECONSTRUCTION 133 

suggestive of an enabling act for a territory than 
of a guaranteeing act for a state. 

As the power to organize new governments 
in the rebel states was based upon an interpreta- 
tion of the word ** guarantee," so the right to 
determine the suffrage was evolved from the ex- 
pression "a republican form of government." No 
authoritative definition of such a form exists in 
our law. The Supreme Court has ascribed the 
determination of its characteristics to Congress.^ 
It was held by the negro-suffragists that the 
emancipation of the blacks and their admission 
to the enjoyment of civil rights had effected a 
modification in the conception of a "republican 
form." This doctrine was adopted by all the 
supporters of military reconstruction. " The new 
freemen," said Chief Justice Chase, in Texas vs. 
White, "necessarily became part of the people, and 
the people still constituted the state. . . . And 
it was the state, thus constituted, which was now 
entitled to the benefit of the constitutional guar- 
anty." The implication was that a republican 
form under the new circumstances must include 
negroes among the bearers of the suffrage. It 
cannot be doubted that the decision of Congress 
as to when a state has a republican form of gov- 
ernment is final. But a decision which runs counter 
to the facts of history as well as to the previous 

1 Luther vs. Borden, 7 Howard, 42; Texas vs. White, 7 Wallace, 
730. 



134 



THE CONSTITUTION OF THE 



interpretation of our fundamental law may well 
be regarded as revolutionary. The principle of 
the reconstructionists was that impartial manhood 
suffrage, without respect to color, was a charac- 
teristic feature of a republican form of state gov- 
ernment. In contradiction to this doctrine stood, 
first, the historical fact that at the formation of 
the constitution as well as at the era of the recon- 
struction many if not most of the states excluded 
negroes from the polls ; and second, the universally 
recognized legal principle that, by the plainest 
inference from the words of the constitution,^ 
the states were authorized to fix the qualifications 
of electors absolutely at their discretion. Sumner 
met both these obstacles boldly. He declared that 
the whole history of the negro in this country gave 
the lie to any claim that our state governments 
were or had been republican, and he argued with 
all the power of his learning that color was in no 
sense a "qualification" of electors. The majority 
of the reconstructionists declined to follow him 
into such radical paths. They preferred to bridge 
the abyss that yawned between the old system 
and the new with a series of disjointed quibbles. 

The doctrine of forfeited rights has been adopted, 
as a theory of constitutional law, by the Supreme 
Court,2 and for a long time, probably, the legal re- 

1 Article i, section 2. 

2 Texas vs. White, 7 Wallace, 700 ; cf. also i Chase's Decisions, 
139, and Gunn vs, Barry, 15 Wallace, 623. 



UNITED STATES IN RECONSTRUCTION 135 

lations of the civil war and reconstruction will be 
construed in accordance with this theory. With 
its political bearings, however, the court has rightly 
disclaimed all connection. The question as pre- 
sented to the judiciary was : Has such and such a 
state ever ceased to be a state of the Union .? For 
answer to this interrogation, the court declared its 
obligation to follow the political departments of 
the government. A review of the acts of these 
departments failed to reveal an express declaration 
that any state had ceased to exist. The process of 
reconstruction presented many situations which 
could be explained as readily by assuming a revolu- 
tion to have occurred as by strained constructions 
of the constitution. It was the duty of the judi- 
ciary, however, to preserve above all things the 
continuity of legal development. This duty was 
fulfilled, notably, in the elaborate argument, but 
very doubtful logic, of Texas vs. White. Private 
rights must be determined, then, on the theory 
that a state cannot perish. With political relations 
the case is different. Only the tension of a great 
national crisis is likely to call for a review of the 
Reconstruction Acts by the legislature; yet in such 
an emergency these precedents of political action 
may and probably will be regarded as much more 
consistent with the views of Sumner and Stevens 
than with the theory of forfeited rights. 



MILITARY GOVERNMENT DURING 
RECONSTRUCTION 

By the acts of March 2 and March 23, 1867, 
Congress laid down the lines on which the process 
of reconstruction was finally to be carried through. 
This legislation, supported by the public sentiment 
of the North, practically settled the constitutional 
issues of the war. Not that efforts were not made 
to break the hold of the national military power 
on the South. Sanguine lawyers of both sections 
hastened to Washington to invoke the aid of the 
Supreme Court in overthrowing what seemed pal- 
pably unconstitutional proceedings under the Re- 
construction Acts. Mississippi applied through 
counsel for an injunction to restrain the President 
from enforcing those acts,^ but in vain ; " govern- 
ment by injunction" in this particular aspect failed 
to win the favor of the court. Nor was any bet- 
ter success attained when Georgia moved against 
Stanton, the subordinate,^ rather than Johnson, the 
chief. The court wisely recognized a sphere in 

1 Miss. vs. Johnson, 4 Wall. 475. 

* Georgia vs. Stanton, 6 Wall. 51. 

136 



GOVERNMENT DURING RECONSTRUCTION 1 37 

which it would not intrude upon the discretion of 
the executive. A more promising opportunity to 
test the obnoxious laws arose in connection with 
the writ of habeas corpus. For the better en- 
forcement of the Civil Rights Act Congress in 
1867 extended the appellate jurisdiction of the 
Supreme Court to all habeas corpus cases that 
involved United States laws. One McCardle, a 
Mississippi editor, availed himself of this law to 
bring before the court the question as to the 
legality of his arrest under the Reconstruction 
Acts. The supporters of these acts were very 
distrustful of the court, especially as to its pos- 
sible opinion on the clauses establishing military 
government. When, therefore, the court denied a 
motion to dismiss McCardle's appeal and heard 
the case argued on its merits, the Congressional 
leaders were greatly alarmed. Before an opinion 
was rendered the House hurried through a repeal 
of so much of the act of 1867 as was involved in 
McCardle's case ; the Senate concurred with un- 
wonted celerity ; and, though the scheme was de- 
tected in time to receive the President's veto, the 
bill became a law, and the court dismissed the 
case for want of jurisdiction.^ The justices were 
no doubt greatly relieved to escape the responsi- 
bility of deciding this case. It was much better 
from every point of view that the fierce contro- 
versy of the times should be fought out entirely 

1 Ex parte McCardle, 6 Wall. 324; 7 Wall. 512. 



138 MILITARY GOVERNMENT 

by the distinctively political organs of the gov- 
ernment. After the failure of the McCardle case 
the opposition to reconstruction found significant 
expression chiefly in the messages of the Presi- 
dent and the platforms of the Democratic Party, 
neither of which carried much weight. 

Meanwhile the process was carried to its con- 
clusion by the military commanders to whom its 
execution was entrusted. The functions of these 
officers were, under the terms of the acts, of a 
twofold character. First, the "adequate protec- 
tion to life and property," which was declared 
by the acts to be lacking, was to be furnished 
by the military; second, the organization of a 
new political people in each of ten^ states was 
to be effected according to the method laid down 
in the acts. The purpose of this essay is to set 
forth the leading features of the military regime 
in the fulfilment of the first of these functions. 



I 

The chief end of the Reconstruction Acts was 
purely political. They were enacted for the pur- 
pose of giving the negro the ballot in the ten 
Southern states which had rejected the proposed 
Fourteenth Amendment. Their whole operation, 
therefore, must be regarded as incidental to this 

1 Tennessee had been restored to her normal relations in the 
summer of 1866, Ante, p. 119. 



DURING RECONSTRUCTION 139 

object. That the establishment of military gov- 
ernment was a feature of the system they em- 
bodied, was due primarily to the fact that the 
introduction of negro suffrage was possible only 
by the strong hand. The act of March 2 did 
indeed allege that " no adequate protection for 
life or property " existed in the states concerned, 
and asserted the necessity of enforcing peace and 
good order therein. But these declarations were 
inseparably connected with the denunciation of 
the existing state governments as illegal ; so that 
the lack of protection for life and property could 
be construed as arising from the illegality rather 
than from the inefficiency of the de facto civil 
authorities. 

It was, indeed, contended by the more violent 
radicals in the debates on reconstruction that the 
actual conditions in the South were intolerable, 
and that military force was needed for the mere 
maintenance of peace, apart from political reor- 
ganization. But the weight of evidence pointed 
to the contrary. The reports of the army com- 
manders and of the commissioners of the Freed- 
men's Bureau for 1866 were almost uniformly of 
a reassuring tone. Abuse of freedmen and Union 
men was not only becoming less common, but was 
also receiving adequate attention from the ordi- 
nary state courts. General Wood declared that 
in Mississippi substantial justice was administered 
by the local judiciary to all persons irrespective 



40 



MILITARY GOVERNMENT 



of color or political opinions. General Sickles 
thought the same to be true for most parts of 
South Carolina. General Howard, the head of the 
Freedmen's Bureau, drew from the reports of his 
subordinates a similar conclusion as to the whole 
region covered by their operations.^ On the other 
hand, General Sheridan found a good deal still to 
be desired in Louisiana and Texas, and Sickles 
admitted that certain specified counties of South 
Carolina failed to afford a safe habitation for the 
freedmen. The latter officer's explanation of the 
existing disorder embodied a truth that was appli- 
cable very generally through the South. He de- 
clared that the outrages in the localities referred 
to were not peculiar to that time. 

Personal encounters, assaults and difficulties between citi- 
zens, often resulting in serious wounds and death, have for 
years occurred without serious notice or action of the civil 
authorities ; . . . where it has hitherto seemed officious to 
arrest and punish citizens for assault upon each other, they 
can hardly be expected to yield with any grace to arrests for 
assaults and outrages upon negroes.^ 

The general here touched upon a potent source of 
evil to the South in the days of reconstruction. 
Northern opinion tended to judge the rebel states 
by social standards that never had been fairly 
applicable to them. A laxity in the administra- 
tion of criminal justice that had always prevailed 

^ See reports annexed to that of the secretary of war for 1866. 
2 Report of General Sickles for 1866. 



DURING RECONSTRUCTION 141 

was wrongly ascribed by the North to a xsx^x^ post- 
bellinn spirit of rebellion and race hatred. 

The most striking evidence that affairs were 
assuming a normal condition in the South was 
afforded by the extent to which military authority 
and jurisdiction were withdrawn during the year 
1866. The Freedmen's Bureau had been endowed 
with judicial authority in cases in which the f reed- 
men were not assured of equal rights with the 
whites. But by the end of that year a gradual 
relinquishment of this authority was completed in 
most of the states. Only in parts of Virginia, Lou- 
isiana and Texas were the special courts still in 
existence at the time of the commissioner's report. 
The ordinary administration of civil and criminal 
justice for all citizens irrespective of race had thus 
been resigned to the state courts. This process 
had of course been rendered much more rapid by 
the enactment of the Civil Rights Act, which gave 
to the regular national judiciary jurisdiction over 
cases in which equal rights were denied. By 
action of the military authorities the "vagrancy 
laws" and other offensive statutes passed by the 
state legislatures for controlling the blacks had 
been rendered nugatory, and the United States 
courts manifested from the outset a resolution to 
give to the Civil Rights Act an interpretation 
that should effectively nullify any parts of the 
" black codes " that had escaped the military 
power. But all further labor by the judiciary on 



142 MILITARY GOVERNMENT 

the problem of securing equal civil rights for the 
freedman was rendered for the time unnecessary 
by the resort to military power to secure him equal 
political rights. 

In the spring of 1867, when the first Reconstruc- 
tion Act went into effect, the general situation in 
the South was probably not as satisfactory as it 
had been at the beginning of the preceding winter. 
Two causes had contributed to a reaction. In the 
first place, the crops had in many parts of the 
South failed entirely in 1866. The pressure of 
famine began to be felt early in the winter, and by 
the beginning of the next spring the distribution 
of food through both public and private agencies 
had assumed large proportions.^ Upon the rela- 
tions between the races the crop failure had seri- 
ous effects. Complaints arose in every direction 
from the freedmen that their wages were not 
being paid by their employers. The latter in too 
many cases were quite unable to pay, in others 
were disposed to take advantage of the situation 
to escape their liability. Much friction naturally 
arose out of the circumstances. To this was added 
the bad feeling generated by the discussion of 
negro suffrage in Congress and out during the 
winter. As the resolution of the dominant party 

1 By authority of a joint resolution of March 30, the Freedmen's 
Bureau devoted half a million dollars to the purchase and distribu- 
tion of food in the South. — Report of Commissioner Howard for 
1867. 



DURING RECONSTRUCTION 143 

to enfranchise the blacks by force became clear 
the disgust and despair of the whites tended 
toward expression in violence, especially wherever 
the freedmen manifested any consciousness of 
unwonted power. There is little room to doubt 
that the establishment of military government at 
the South was indispensable to the Congressional 
scheme of reconstruction ; but that such govern- 
ment was necessary without reference to that 
scheme is hardly to be conceded. 

II 

By the act of March 2, 1867, the ten Southern 
states affected were divided into five military dis- 
tricts, each to be commanded by an officer not 
below the rank of brigadier-general. The primary 
duties of these officers were 

to protect all persons in their rights of person and property, 
to suppress insurrection, disorder and violence, and to punish, 
or cause to be punished, all disturbers of the public peace and 
criminals. 

For the execution of these duties the commanders 
could either allow the local civil tribunals to try 
offenders, or organize military tribunals for the 
purpose. In case the latter method were em- 
ployed, the sentence of the tribunal was to be 
subject to approval by the district commander; 
and, if it involved the death penalty, to the ap- 
proval of the President. Interference with the 



144 MILITARY GOVERNMENT 

military under color of state authority was declared 
null and void, while the existing civil governments 
in the states were declared provisional only, and 
subject to the paramount authority of the United 
States, to abolish, modify, control or supersede. 
In these provisions were defined the functions of 
the commanders so far as the preservation of order 
and the conduct of civil administration were con- 
cerned. Their duties in the reorganization of the 
state governments were set forth in the supple- 
mentary act of March 23, and will be considered 
elsewhere. 

On the nth and 15th of March orders from 
army headquarters made the following assignments 
of commanders : First district, Virginia, General 
Schofield ; second district. North Carolina and 
South Carolina, General Sickles ; third district, 
Georgia, Florida and Alabama, General Pope ; 
fourth district, Mississippi and Arkansas, General 
Ord ; fifth district, Louisiana and Texas, General 
Sheridan.^ All these officers had distinguished 
themselves in the war and had acquired reputa- 
tions that guaranteed success in any military 
capacity. But the positions in which they now 
found themselves demanded other than purely 

1 None of these officers remained in command of his district till 
reconstruction was complete. The following is a list of their succes- 
sors : First district, Stoneman, Webb, Canby; second district, Canby ; 
third district, Meade; fourth district, Gillem, McDowell, Ames; fifth 
district, Griffin, Mower, Hancock, Buchanan, Reynolds, Canby. 



DURING RECONSTRUCTION 145 

military qualities. They were to carry out a great 
political policy, which was to be resisted not by 
armed force, but by political means. They were 
to act under a commander-in-chief who was a vio- 
lent adversary of the policy, and under a General 
of the Army whose conscientious efforts to main- 
tain an impartial attitude failed to conceal his dis- 
position to favor the policy. They had to deal, 
moreover, with civil governments which their 
commander-in-chief insisted were constitutional or- 
ganizations, but which Congress had declared des- 
titute of legality. Though military officers are not 
supposed to have political opinions, the five gen- 
erals could hardly fail to be influenced by their 
personal conclusions on the great issues of the 
day. It was generally known that Sheridan and 
Pope were in favor of strong measures in dealing 
with the South, and that Sickles would readily 
adopt a radical line of action.^ If Schofield and 
Ord, from whatever motives, failed to conform to 
this example, it was inevitable that they should 
be displeasing to the extremists in Congress and 
should be sustained by the moderate Republicans 
and the Democrats. Political, rather than military, 
considerations would necessarily form the basis for 

1 Cf. Blaine, Twenty Years of Congress, II, 297, note. This 
note, satisfactory for the subject in connection with which I have 
cited it, contains, however, a number of those inaccuracies of 
statement and imphcation which mar every part of this useful but 
untrustworthy work. 



146 MILITARY GOVERNMENT 

judgment upon the conduct of the commanders; 
and in order to sustain their honorable reputations 
a degree of tact and discretion in civil affairs was 
essential that far exceeded anything that had been 
required of them before. 

As to the mass of the whites — the people, in a 
political sense, of the South — no possible conduct 
of the military rulers could be expected to win 
their approval. The necessity of submission to 
force had been thoroughly learned, and no organ- 
ized resistance was attempted to the few thousand 
troops that were scattered over the ten states.^ 
But the loss of the self-government which had 
gradually been restored during the last two years 
caused deep indignation and resentment. Apart 
from the dread of approaching negro domination, 
the mere consciousness that the center of authority 
was at military headquarters, and not at the state 
capital, disheartened the most moderate and pro- 
gressive classes. It soon appeared, moreover, that 
military government was not to be simply nominal ; 
the orders of the commanders reached the com- 
monest concerns of every-day life, and created the 
impression of a very real tyranny. 

At the outset all five generals announced a pur- 

1 The adjutant-general's report of October 20, 1867, gives the 
total force in the ten states as 19,320, distributed among 134 posts. 
Richmond and New Orleans had about looo men each; but at no 
other post were there as many as 500. Of the total force, over 70CX) 
were in the fifth district — Louisiana and Texas. 



DURING RECONSTRUCTION 147 

pose, and most of them a desire, to interfere as 
little as possible with the ordinary civil administra- 
tion. ^ Officials of the existing governments were 
directed to continue in the performance of their 
duties until duly superseded. All elections under 
state laws were, however, forbidden, since the 
negroes were to be clothed with the suffrage 
before the popular will should again be consulted. 
As to the administration of justice, whenever it 
appeared to the military officers that the ordinary 
courts were not sufficiently active or impartial in 
their work, cases were transferred to the military 
tribunals that were expressly authorized by the 
Reconstruction Act. The punishment of blacks 
by whipping or maiming, which was provided for 
by recent state acts, was prohibited at once, in 
accordance with a rider in the Army Appropriation 
Act of March 2, 1867. It was inevitable that the 
summary overriding of the established order, on 
however moderate a scale, should engender con- 
flicts of authority and consequent friction ; but the 
only result was that the assertion of military con- 
trol in the administration of both civil and criminal 
law increased steadily in scope in all the districts 
as the months rolled on. Each fresh recourse to 
arbitrary authority aroused a great storm of re- 
proach and denunciation from the Democratic 

1 The most important orders and correspondence relating to 
military government in its initial and determining stages are em- 
bodied in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong. 



148 MILITARY GOVERNMENT 

press both North and South, and in June the 
administration itself, through a published opinion 
of Attorney-General Stanbery, harshly disapproved 
the policy adopted by most of the officers. This 
brought a crisis and Congress, hastily reassem- 
bling, conclusively defined the scope of the military 
power by the supplementary legislation of July 19. 

Ill 

The most harassing question that had to be 
dealt with by the generals on assuming their com- 
mands was that of their relation to the officers of 
the existing state governments. The act of March 
2 declared these governments to be provisional 
only and subject to the paramount authority of 
the United States "to abolish, modify, control or 
supersede the same," but did not expressly em- 
power the district commanders to wield this para- 
mount authority. In pursuance of their express 
power to maintain order the generals were, how- 
ever, obliged to assume that a control over the 
perso7inel of the state administration was implied. 
Removals from office, accordingly, were made from 
the beginning on grounds of inefficiency or of 
obstruction to the work of registering the negroes. 
As removals did not abolish the offices, but were 
followed by appointments, military headquarters 
tended to become the center of a keen struggle for 
place and patronage. The mutual recriminations 



DURING RECONSTRUCTION 149 

of the parties to such struggles were echoed 
throughout the land and contributed one more 
element to the embarrassment of the commanders. 
The manner of filling vacancies caused by re- 
moval or otherwise also gave rise to serious dis- 
cussion. Under military law there seemed no 
doubt that an officer or soldier could be detailed 
by the commander to perform the duties of any 
position. This method was employed in many 
cases ; but the supply of troops was entirely inade- 
quate to the demand for non-military services and 
resort had to be made to civilians. At this point, 
however, important questions of constitutional law 
arose. What was the legal status of a civilian 
appointed, for example, governor of Louisiana.? 
Was he a state or a federal officer } Certainly not 
the former; for apart from the question as to 
whether any state in the constitutional sense ex- 
isted in Louisiana, no officer of such a state could 
be conceived as deriving his tenure from the will 
of an army officer. But if the appointee was a 
federal officer, why should he not be subject to 
the constitutional requirement of appointment by 
the President, with the advice and consent of the 
Senate .? Congress might, under the constitution, 
vest the appointment of inferior officers in ** the 
President alone, in the courts of law or in the 
heads of departments";^ but there seemed no 
basis for appointment by a major-general com- 

1 Constitution, art. ii, sec. 2. 



150 



MILITARY GOVERNMENT 



manding a military district. As a matter of fact, 
the attempt to define the precise status of civilian 
appointees was never successful. The radicals in 
Congress thought they should be designated rather 
as ''agents" of the district commanders than as 
officers in any strict sense. ^ It was rather gratify- 
ing than otherv/ise to reflect that these ''agents" 
drew their salaries, not from the army appropria- 
tion or any other national funds, but from the 
treasury of the state. 

Serious as were the questions involved in the 
policy, the commanders were forced by sheer neces- 
sity to make civilian appointments from the very 
outset. In this practice the whole spirit of the re- 
construction legislation required that only " loyal " 
men receive preferment. Thus was begun, even 
before reconstruction was effected, the process of 
giving political position and power to a class which, 
from the nature of the case, could have little in- 
fluence with the masses of the Southern whites. 
In the beginning the test of " loyalty" was a record 
of opposition to secession and of positive hostility, 
or at least lukewarmness, to the Confederate cause. 
As the reconstruction proceeded the test was in- 
sensibly transformed until, before the end was 
reached, the prime qualification of the loyal man 
was approval of the Reconstruction Acts and of 
negro suffrage. Office-holding thus tended to be- 
come the prerogative of those few whites who pro- 

1 Cf. Wilson in Cong. Globe, 1st sess., 40th Cong., p. 527. 



DURING RECONSTRUCTION 151 

fessed allegiance to the Republican Party. Only 
in connection with the registration and after the 
enfranchisement was complete were the blacks 
admitted to important official positions. ^ 

The actual practice of the commanders in respect 
to removals and appointments varied in the differ- 
ent districts. From Virginia to Texas the construc- 
tion and application of the powers conferred by 
the act grew more radical with the progress south- 
ward. General Schofield, in Virginia, besieged 
headquarters with supplications for authoritative 
rulings upon his powers, and meanwhile exercised 
the powers with great moderation. Civil officers 
were not ''removed," but were "suspended" from 
office and "prohibited from the exercise of the 
functions thereof until further orders." ^ Civilian 
appointments were made after consultation with 
local judicial officers, and the appointees were duly 
commissioned by the governor of the state. In 
the Carolinas General Sickles was obliged to assert 
his authority more freely. He was, however, able 
to maintain cordial relations with Governors Worth 
and Orr,2 and this fact smoothed his path some- 
what. Removals were made only for positive mis- 

1 Five negroes were appointed policemen in Galveston as early 
as June 10, and there may have been other instances of this kind. 
— Ann. Cyc, 1867, p. 715. 

2 Cf, Special Orders, No. 50 and No. 54, in reference to certain 
justices of the peace. 

3 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong., 
p. 56. 



152 MILITARY GOVERNMENT 

conduct in office, and were but twelve in number 
for the first three months of the command.^ Ap- 
pointments were very numerous, a large number 
of municipal offices falling vacant by expiration of 
the incumbents' terms. The extent to which the 
military power affected the most peaceful aspects of 
social life is illustrated by the fact that a ** trustee 
of Newbern Academy " was among those who were 
clothed with official authority by orders from head- 
quarters. ^ In the third district General Pope as- 
sumed at once an extreme position as to the scope 
of his authority, and proposed to exercise it by 
deposing Governor Jenkins, of Georgia, for ex- 
pressing hostility to the Reconstruction Acts. The 
governor saved himself by a plea of ignorance as 
to the commander's will, and escaped with nothing 
worse than a severe scolding, administered in a 
letter which manifested the same easy self-con- 
fidence and fluency of expression that had made 
its author a little ridiculous in the second Bull 
Run campaign.3 At the end of May the mayor, 
chief of police and other municipal officers of 
Mobile were summarily removed, and their places 
were filled by '' efficient Union men." The occa- 
sion for this was a disturbance that took place in 
connection with a meeting at which Congressman 
Kelley, of Pennsylvania, made an address. This 
exercise of the power of removal and appointment 

1 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong., 



DURING RECONSTRUCTION 1 53 

attracted very widespread attention, and contro- 
versy raged fiercely as to the justice and legality of 
the action. It was but a few days later that General 
Sheridan, at New Orleans, took the most decisive 
step of all in removing Governor Wells, of Louisi- 
ana, and appointing Mr. Flanders, a civilian, in 
his place. Removals and appointments in minor 
offices ^ had been very frequent in the fifth district, 
but this last action brought the whole question to 
a head. As department commander before the pas- 
sage of the Reconstruction Acts, General Sheridan 
had conceived a very poor opinion of the leading 
politicians of both Louisiana and Texas, Governor 
Wells among them,^ But Wells had influential 
friends in administration circles at Washington, 
where Sheridan was particularly disliked ; and 
moreover, the extension of the discretionary power 
of a commander to a sphere where very important 
considerations of influence and emolument were 
involved excited vehement criticism. 

President Johnson was now overwhelmed with 
demands that the acts of Sheridan and Pope 
should be overruled. Attorney-General Stanbery 
had been asked for an opinion on this and other 
points in the interpretation of the reconstruction 
laws. His opinion, rendered under the date of 

1 The attorney-general of the state and the mayor and city judge 
of New Orleans were removed March 27. 

^ Cf. Sheridan's report for 1866, in Report of Secretary of War, 
2d sess,, 39th Cong. 



154 MILITARY GOVERNMENT 

June 12, declared that these acts gave no authority 
whatever for either removal or appointment of ex- 
ecutive or judicial officers of a state.^ But Con- 
gress sprang promptly into the breach, and by the 
supplementary act of July 19 ^ gave to the com- 
manders, in the most unqualified terms, power to 
remove at their discretion any state officer, and to 
fill vacancies either by the detail of an officer or 
soldier, or "by the appointment of some other 
person." Under this authority there was no 
longer any room for doubt or ground for hesita- 
tion. The act provided further that it should be 
the " duty " of the commanders to remove from 
office all persons "disloyal to the government of 
the United States," and required that new ap- 
pointees should take the " iron-clad oath." ^ 

Every facility was thus afforded for a complete 
control of the persomiel of the civil administration 
by the commanding officers. When the constitu- 
tional conventions under the new registration met 
in the various states strong pressure was put upon 
the generals and upon Congress to bring about a 
" clean sweep " of the existing officials, and a bill 
requiring such a proceeding was brought before 

^ The opinion is in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong., 

P- 275- 

2 Given in McPherson, History of the Reconstruction, p. 335. 

' The stringent oath required from officers of the United States, 
by act of July 2, 1862. It could not be taken by any one who had 
given " voluntary support " to any rebel government, state or Con- 
federate. See infra, p. 184, note. 



DURING RECONSTRUCTION 155 

the House of Representatives. But General Scho- 
field and other officers declared that the adoption 
of this policy would render government impossible, 
as there were not available enough competent per- 
sons to fill the places vacated, if the iron-clad oath 
should be required. Until reconstruction was nearly 
completed, therefore, the commanders were per- 
mitted to retain their discretion in the matter, and 
changes were made, as a rule, oijly for good cause.^ 
Governor Throckmorton, of Texas, was removed 
July 30 for having made himself an *' impediment 
to the execution of " the Reconstruction Acts, and 
was succeeded by a civilian named Pease.^ Gov- 
ernor Jenkins, of Georgia, who had escaped the 
power of General Pope, fell quickly before that 
of General Meade, who succeeded Pope at the 
beginning of 1868. The governor, having refused 
to execute warrants on the state treasury for the 
payment of the expenses of the constitutional 
convention, was summarily deposed, and his func- 
tions were assigned to General Ruger.^ Governor 

1 By law of Feb. 6, 1869, the commanders were required to re- 
move all officers who could not take the iron-clad oath. But at 
that time military government prevailed only in Virginia, Missis- 
sippi and Texas. 

2 The unsuccessful candidate in the election at which Throck- 
morton had been chosen governor. 

3 The treasury officials, sympathizing with Jenkins, concealed 
and spirited away the books of the treasury, whereupon the sus- 
pected persons were brought before a military commission for 
punishment. But General Meade's financial path was very thorny. 
— See his report for 1868. 



156 MILITARY GOVERNMENT 

Humphreys, of Mississippi, was deposed in June, 
1868, as an obstacle to reconstruction, and was 
succeeded by General Ames. In other states 
governors were removed, but only to facilitate the 
transition from the military regime to the perma- 
nent system under the new constitutions. Of the 
lesser state officials the changes in personnel wq^yq, 
naturally the most extensive in the larger towns 
and cities. It was there that partisan zeal tended 
to find its most heated expression ; and there also 
were to be found in the greatest numbers the 
Union men who could qualify for office under the 
new law. Before reconstruction was completed, 
therefore, the municipal administration in all the 
principal cities was remanned by military authority. 
The list in which this was wholly or partially the 
case includes Wilmington, Atlanta, Mobile, Vicks- 
burg, New Orleans, Galveston and Richmond. 



IV 

In respect to the relation of the district com- 
manders to the laws of the states subjected to their 
authority, there was room for a difference of opin- 
ion similar to that which we have seen in respect 
to the personnel of the governments. Power to 
modify or set aside existing laws was not expressly 
bestowed upon the commanders; and the recog- 
nition of civil governments of a provisional char- 
acter gave room for the implication that the 



DURING RECONSTRUCTION 157 

legislation of these governments was to have 
permanent force. But a different view was acted 
upon by most of the generals from the beginning. 
Assuming that they were endowed with all the 
powers incident to " the military authority of the 
United States," and that their duty to " protect all 
persons in their rights of person and property " 
required the unlimited use of such powers, they 
refused to regard the state laws as of any signifi- 
cance save as auxiliary to the military government. 
Whatever validity attached to such laws was due 
to their tacit or express approval by the com- 
mander. General Schofield, in giving to mili- 
tary commissioners the powers of county or police 
magistrates, directed them to be "governed in the 
discharge of their duties by the laws of Virginia," 
so far as these did not conflict with national laws 
"or orders issued from these headquarters."^ 
General Sickles specifically proclaimed in force 
"local laws and municipal regulations not incon- 
sistent with the constitution and laws of the United 
States or the proclamations of the President, or 
with . . . regulations . . . prescribed in the orders 
of the commanding general."^ The implication 
from these illustrations is clear that existing law 
could be superseded by the military order — that 
the district commander had legislative authority. 
Against this interpretation of the Reconstruc- 

1 First district, General Orders, No. 31, May 28, 1867. 

2 Second district. General Orders, No. i, March 21, 1867. 



158 MILITARY GOVERNMENT 

tion Act Attorney-General Stanbery argued most 
earnestly in his opinion of June 12. No power 
whatever, he declared, was conferred on the com- 
manders in the field of legislation. They were to 
protect persons and property, but the sole means 
for this purpose that the law gave them was the 
power to try offenders by military commission; 
save where such procedure was deemed necessary 
the jurisdiction and laws of the old state organiza- 
tion remained intact. But the ingenuity of Mr. 
Stanbery was of no avail. In the supplementary 
act of July 19 Congress declared explicitly that 
the ten state governments, at the time the Recon- 
struction Act was passed, "were not legal state 
governments ; and that thereafter said govern- 
ments, if continued, were to be subject in all 
respects to the military commanders of the re- 
spective districts, and to the paramount authority 
of Congress." This phraseology assured to the 
generals the same free hand in respect to state 
laws as was assured in respect to state officers by 
other parts of the act. 

So far as the criminal law was concerned, the 
failures of justice which had been alleged as jus- 
tifying the establishment of military government 
were attributed to the administration rather than 
to the content of the law. The military commis- 
sions which were constituted with various degrees 
of system and permanency by the district com- 
manders served very effectively to supplement the 



DURING RECONSTRUCTION 159 

regular judiciary in the application of the ordinary 
state law. No extensive modifications of the law 
itself, therefore, were considered necessary. When 
policemen or sheriffs failed to arrest suspected or 
notorious offenders the troops did the work ; when 
district-attorneys failed to prosecute vigorously, or 
judges to hold or adequately to punish offenders, 
the latter were taken into military custody ; when 
juries failed to convict, they were supplanted by 
the military courts. It was fully realized from the 
outset that, in the condition of public opinion in 
the South, trial by jury could not be expected to 
give strict justice to Union men or, in general, 
to the freedmen. As an alternative, however, for 
the general establishment of military commissions 
a remodeling of the jury laws was an obvious 
expedient. If juries could be empaneled from 
blacks and whites indiscriminately, the influence 
of the rebel sentiment would be neutralized. It 
seemed axiomatic, moreover, that, if the freed- 
men were qualified to vote, they were qualified for 
jury service. Accordingly, we find that the more 
radical commanders — Sickles, Pope and Sheridan 
— used their authority to decree that the blacks 
should be accepted as jurors. With the comple- 
tion of the registration of voters, the attainment 
of the end sought was simple ; court officers were 
directed to make up the jury panels from the 
registration lists.^ General Schofield, in Virginia, 

1 Cf. Report of Secretary of War for 1867, vol. i, pp. 304 ss, 331 ss. 



l60 MILITARY GOVERNMENT 

with his usual wise conservatism, concluded that 
this method of solving the problem would not be 
satisfactory, and confined himself, therefore, to the 
use of military commissions.^ 

Before the completion of the registration made 
feasible the method finally employed, the com- 
mander in Texas had sought to attain the end by 
requiring jurors to take the " iron-clad oath." But 
this was bitterly resented by the Southerners on 
the ground that it practically excluded native 
whites from the juries.^ Even the final method 
caused great friction between the courts and the 
commanders in Louisiana and Texas. The vast 
extent and sparse population of the region included 
in these states made the fifth district altogether the 
most difficult to deal with in every phase of the 
reconstruction process. When General Hancock, 
succeeding Sheridan, assumed command in Novem- 
ber, 1867, he formally revoked the order requiring 
that jurors be chosen from the registered voters, 
and put the old state laws in operation. This 
action was an incident of the new commander's 
general policy, which, as embodied in his famous 

1 •' After full consideration I became satisfied that any rule of 
organization of juries, under laws which require a unanimous ver- 
dict to convict . . . must afford a very inadequate protection . . . 
in a society where a strong prejudice of class or caste exists." — 
Report of General Schofield in Report of Secretary of War, 1867, 
vol. i, p. 240. 

2 For the correspondence on this matter, see Sen. Ex. Doc, ist 
sess., 40th Cong., No. 14, pp. 208-210. 



DURING RECONSTRUCTION i6l 

General Orders, No. 40, reversed that of his 
predecessor. " Crimes and offenses," he declared, 
"must be left to the consideration and judgment 
of the regular civil authorities"; and in Special 
Orders, No. 203, after reciting that Sheridan's or- 
der as to jurors was acting as a clog on justice, 
he asserted that in determining the qualifications 
for jurors it was best to carry out the will of the 
people as expressed in the last legislative act upon 
the subject.^ The reluctance of General Hancock 
to interpose, either through military courts or 
through modification of the jury laws, in the ordi- 
nary administration of justice, gave great offense 
to the loyalists in the South and to the radicals 
throughout the Union, and was held to have re- 
sulted in a widespread revival of crime in the fifth 
district.^ 

The changes in the jury laws by military author- 
ity affected, of course, both civil and criminal law. 
Of like scope was the summary abrogation by 
General Sheridan of a Texas act of 1866 by which 
the judicial districts of the state were rearranged, 
the commander holding that the act had been 
passed for the purpose of legislating two Union 
judges out of office.^ Of the modifications of 

1 For the whole subject see Hancock's report in Report of Sec- 
retary of War for 1868; also Ann. Cyc, 1867, pp. 463-4. 

2 See his report for a sharp correspondence with Governor 
Pease, of Texas. 

' Sen, Ex. Doc, ist sess., 40th Cong., No. 14, p. 218 et seq. 

M 



1 62 MILITARY GOVERNMENT 

criminal law pure and simple, conspicuous ex- 
amples are found in Sickles' General Orders, 
No. 10, in which the carrying of deadly weapons 
was forbidden, the death penalty for certain cases 
of burglary and larceny was abolished, and the 
governors of North and South Carolina were en- 
dowed with the powers of reprieve and pardon.^ 
This last provision was probably suggested by a 
case in which the military power had been effec- 
tively invoked by the civil in the interest of mercy. 
A negro in North Carolina had been convicted of 
burglary and sentenced to death. The governor 
believed that the case called for clemency ; but 
under the state laws he had the power only to 
pardon and not to commute. As a pardon was 
not desirable, the case was laid before the district 
commander, who then, by his paramount military 
authority, commuted the sentence to imprisonment 
for ten years.^ 

The operation of military government in con- 
nection with the general police power of the states 
is illustrated by General Sickles' prohibition of 
the manufacture of whiskey, on the ground that 
the grain was needed for food ; by his prohibition 
of the sale of intoxicating liquor except by inn- 
keepers ; by General Ord's command that illicit 
stills and their product be sold for the benefit of 
the poor, on the ground "that poverty increases 

^ Sen. Ex. Doc, ist sess,, 40th Cong., No. 14, p. 62. 
2 Ibid., p. 76. 



DURING RECONSTRUCTION 163 

where whiskey abounds " ; and by General Sheri- 
dan's summary abolition of the Louisiana levee 
board and the assignment of its duties to commis- 
sioners of his own appointment, " in order to have 
the money distributed for the best interests of the 
overflowed districts of the state." ^ 



As to the administration of justice in the field 
of private Ir w., interference by the district com- 
manders was f ^r the most part confined to action 
in special cases where the proceedings of the 
courts seemed inequitable or contrary to public 
policy. Under the latter head fall a variety of 
instances in which the circumstances of the war 
and of emancipation were involved. Thus we find 
General Schofield ordering a Virginia court to 

1 The full reason assigned in the commander's order was : " To 
relieve the state of Louisiana from the incubus of the quarrel which 
now exists between his excellency the governor and the state legis- 
lature as to which political party shall have the disbursement of the 
four million dollars of ' levee bonds ' authorized by the last legis- 
lature, and in order," etc.^ as above. — Sen. Ex, Doc, ist sess., 40th 
Cong., No. 14, p. 250. General Sheridan's orders and correspond- 
ence afford copious evidence that his temper was sorely tried by the 
Louisiana politicians. In several of his dispatches to General Grant 
his language in reference to the President's policy was perilously 
near the line of insubordination; but it won for him the enthusias- 
tic support of the radicals in the North, and the House of Repre- 
sentatives passed a special vote of thanks to him for his services in 
Louisiana. 



1^4 MILITARY GOVERNMENT 

suspend proceedings for collecting a judgment in 
a case of assault committed in 1863.^ General 
Sickles set aside a decree of the South Carolina 
court of chancery which ordered that a fund, 
raised to remount a Confederate cavalry force in 
1865, but left unused in a Charleston bank, should 
be returned to the contributors. The general held 
that the money belonged to the United States.^ 
Again, a Charleston savings bank was obliged by 
military order to pay, with interest, sums due to 
certain soldiers who were in the gar/hons of Forts 
Sumter and Moultrie in i860, ar I who had de- 
manded their money, but in vain. Just before the 
beginning of hostilities.^ General Ord suspended 
proceedings looking to the sale of an estate on 
account of a deed of trust for money due for the 
purchase of negroes.^ 

Such examples of intervention by special orders 
are numerous; a far-reaching modification of law 
and procedure was attempted only by General 
Sickles in the second district. His General Or- 
ders, No. 10, of April II, 1867, with the later 
supplementary decrees, assumed, as Attorney-Gen- 
eral Stanbery complained, "the dimensions of a 
code."^ The basis of this policy was the wide- 

1 Sen. Ex. Doc, ist sess., 40th Cong., No. 14, p. 47. 

2 Ann. Cyc. for 1867, art. " South Carolina." 

* Sen. Ex. Doc, ist sess., 40th Cong., No. 14, p. 86. 

* Ibid., p. 152. 

^ Opinion of June 12, ibid.^ p. 281. 



DURING RECONSTRUCTION 165 

spread destitution among the people and the 
general's conviction that extraordinary measures 
were necessary to enable them to develop their 
resources. There was no room for doubt that 
the Southern states were all in a condition of 
economic demoralization. As usual under such 
circumstances, the complaints of debtors, based 
generally on real hardship, were loud and wide- 
spread. Not in the Carolinas alone, but all 
through the South, the demand for stay laws 
was heard. It would hardly have been surpris- 
ing if all the district commanders, in the pleni- 
tude of their powers and the benevolence of their 
hearts, had sought to bring prompt relief by de- 
creeing new tables. General Sickles, after describ- 
ing the distress due to crop failure and debt, and 
the " general disposition shown by creditors to en- 
force upon an impoverished people the immediate 
collection of all claims," declared that "to suffer 
all this to go on without restraint or remedy is 
to sacrifice the general good." Accordingly, he 
announced the following regulations, among others, 
to remain in force until the reconstructed govern- 
ments should be established : Imprisonment for 
debt was prohibited. The institution or continu- 
ance of suits, or the execution of judgments, for 
the payment of money on causes of action arising 
between December 19,^ i860, and May 15, 1865, 

1 South Carolina passed its ordinance of secession Dec. 20, 
i860. 



1 66 MILITARY GOVERNMENT 

was forbidden. The sale of property upon execu- 
tion for liabilities contracted before December 19, 
i860, or by foreclosure of mortgage was suspended 
for one year. Advances of capital, required " for 
the purpose of aiding the agricultural pursuits of 
the people," were assured of protection by the 
most efficient remedies contained in existing law; 
and wages of agricultural labor were made a lien 
on the crop. A homestead exemption, not to be 
waived, was established for any defendant having 
a family dependent upon his labor. The currency 
of the United States was ordered to be recognized 
as legal tender. Property of an absent debtor was 
exempted from attachment by the usual process ; 
and the demand for bail in suits brought to re- 
cover ordinary debts, "known as actions ex cojt- 
tractn,'' was forbidden. 

These sweeping enactments were followed by 
others of a similar character. Having prohibited 
the manufacture and regulated the sale of whiskey 
within the district. General Sickles further decreed 
that no action should be entertained in any court 
for the enforcement of contracts made for the 
manufacture, sale, transportation, storage or insur- 
ance of intoxicating liquors. Having prohibited 
discrimination in public conveyances between citi- 
zens " because of color or caste," he gave to any 
one injured by such discrimination a right of 
action for damages. Finally, he abolished distress 
for rent, and ordered that the crops should be sub- 



DURING RECONSTRUCTION 167 

ject to a first lien for labor and a second lien for 
rent of the land.^ 

This interpretation of military authority as the 
basis of a benevolent despotism called forth a 
vigorous protest from Attorney-General Stanbery 
in his opinion of June 12. But nothing was done 
to interfere with the commander's proceedings 
until he came in rude conflict with the national 
judiciary. On the theory on which his decrees 
were based they were valid against any authority 
save Congress. Chief Justice Chase sat in the 
circuit court at Raleigh in June, 1867, and pro- 
ceeded in due course to decide cases and issue 
process of execution to enforce judgments. A 
marshal who undertook to execute in Wilmington 
a judgment that fell within the stay decrees of 
General Orders, No. 10, was prevented by the 
commander of the post, who was sustained by 
General Sickles. This action raised an issue of 
a much more serious character than was involved 
in the interference with merely state judicial 
procedure. Protests were made to the adminis- 
tration that the military authority established to 
enforce the laws of the United States was being 
employed to obstruct them. Steps were taken 
by the federal district attorney in North Carolina 
to proceed against the commander for resisting the 
process of the federal courts. General Grant wrote 

1 Gen. Orders, No. 32, May 30, 1867, Sen. Ex. Doc, ist sess., 
40th Cong., No. 14, p. 71. 



1 68 MILITARY GOVERNMENT 

to Sickles that " the authority conferred on district 
commanders does not extend in any respect over 
the acts of courts of the United States." Still 
Sickles asked for time to explain ; but before his 
explanation was completed, the President per- 
formed the executive duty which Mr. Stanbery 
had in June assured him could not safely be 
avoided or delayed ; ^ for on August 26 General 
Sickles was, by order of the President, relieved of 
his command. His successor, General Canby, 
promptly instructed the commander at Wilming- 
ton not to oppose the execution of the circuit 
court's judgment. Thus it was settled that, though 
a debtor was protected against a creditor who was 
a citizen of the same state, a foreign creditor was 
assured of the customary relief. This situation 
was only another example of the anomalies that 
characterized the whole process of reconstruction. 
To any protest against the injustice of such a con- 
dition the ready response was: Hasten the work 
of reconstruction, secure the admission of the states 
to full rights, and all irregularities will cease. 

In other districts than the second the apparent 
necessity of relieving distress produced a few in- 
stances of paternal modification of private law. 
In June, 1867, General Ord, ''with a view to 
secure to labor ... its hire or just share of the 
crops, as well as to protect the interests alike of 

^ Opinion of June 12. 



DURING RECONSTRUCTION 169 

debtors and creditors from sacrifices of property 
by forced sales," suspended till the end of the 
year the judgment sale of lands under cultivation, 
crops or agricultural implements, on actions aris- 
ing before January i, 1866.^ But this decree was 
explicitly declared to be not applicable so far as 
the United States courts were concerned. In Vir- 
ginia, also, sales of property under deeds of trust 
were suspended where the result would be to sac- 
rifice the property or to leave families or infirm 
persons destitute of support.^ Radical action on 
behalf of debtors was strongly favored by many 
in the South ; and this sentiment found expres- 
sion in the constitutional conventions when they 
assembled in the various states. In Mississippi 
the convention petitioned General Gillem, Ord's 
successor, to stay executions for debt by military 
order ; but the general refused.^ Hancock, in 
the fifth district, when asked if he would enforce 
an ordinance for the relief of debtors, replied 
that he regarded such an ordinance as beyond 
the scope of the convention's authority.* Pope, 
in the third district, referring to suggestions that 
had been publicly made, said : ** I know of no 
conceivable circumstance that would induce me to 

1 Gen. Orders, No. 12, Sen. Ex. Doc, ist sess., 40th Cong., 
No. 14, p. 146. 

2 Ann. Cyc, 1868, p. 760. ' Ibid., p. 508. 

* Report annexed to Report of Secretary of War, 1868, vol. i, 
p. 249. 



170 MILITARY GOVERNMENT 

interfere by military orders . . . with the relation 
of debtor and creditor under state laws." ^ The 
conventions in Georgia and Alabama, however, 
adopted ordinances prohibiting various proceed- 
ings "■ oppressive " to debtors and abolishing cer- 
tain debts, to take effect with the new constitution. 
General Meade, who had succeeded Pope, became 
aware that great hardships were being caused by 
the eagerness of creditors to press for executions, 
in order to anticipate the operation of the ordi- 
nances. As the only method of meeting this diffi- 
culty, he proclaimed the ordinances in force at 
once as a military order.^ Thus Georgia and Ala- 
bama were for a time on the same plane with the 
Carolinas in this particular matter. 



VI 



In the administration of state finances the same 
arbitrary authority was exercised as in the matters 
already considered. By the act of March 23 Con- 
gress provided for the payment out of the treasury 
of the United States of " all expenses incurred by 
the several commanding generals, or by virtue of 
any orders issued or appointments made by them 
under or by virtue of this act." But the "fees, 
salary and compensation to be paid to all delegates 

1 Ann. Cyc, 1867, p. 365. 

2 Report annexed to Report of Secretary of War, 1868. 



DURING RECONSTRUCTION 171 

and other officers . . . not herein otherwise pro- 
vided for " were to be prescribed by the respective 
conventions, which were authorized by the act to 
levy and collect taxes for the purpose. A method 
of interpretation no more liberal than that which 
was applied by Congress to other provisions of the 
act would have availed, if applied to these, to throw 
the entire burden of state administration on the 
national treasury.^ In practice, however, the Con- 
gressional appropriations were employed only for 
the expenses of the registration and of the elec- 
tions, both for delegates to the conventions and 
for ratification of the constitutions. The running 
expenses of the state governments were paid from 
the respective state treasuries. The condition of 
the finances in most of the states was anything but 
reassuring ; and the feeling of the property owners 
toward reconstruction did not conduce to more than 
usual promptness in the payment of taxes. Con- 
siderable friction developed also in adapting the 
administrative machinery of assessment, collection 
and disbursement of moneys to the requirements of 
military rule. Most of the difficulties were removed 
through the generals' control over the perso7inel 
of the administration. Their legislative authority 
became necessary, however, in a number of cases 

^ President Johnson, employing this method, rolled up an appal- 
ling total ($16,000,000, certainly, and " hundreds of millions," prob- 
ably) as his estimate of the sum necessary to carry out the Recon- 
struction Acts. — Message of July 15, 1S67. 



172 MILITARY GOVERNMENT 

through expiration of the laws regulating tax levies 
and appropriations. The assembling of the legis- 
latures was, of course, forbidden ; and the prolonga- 
tion of the laws beyond the term fixed by their 
provisions was effected by orders from headquar- 
ters.^ At the same time advantage was taken of 
the opportunity to effect such changes in taxation 
and expenditure as seemed desirable under the 
changed circumstances. General Pope directed 
that no payments should be made from the state 
treasuries of his district, except on his approval, 
in order that he might prevent further expenditures 
for " bounties to soldiers in the rebel army for sup- 
port to their families; pay of civil officers under 
the Confederacy; providing wooden legs, etc., for 
rebel soldiers ; educating rebel soldiers, etc., etc.,'' 
few of which he thought likely to be authorized by 
the reconstructed state governments.^ In South 
Carolina General Canby decreed in December ma- 
terial reductions in several kinds of taxes ; he had 
previously suspended the collection of a tax on 
sales which, having been imposed by the last legis- 
lature, had given rise to complaints because of its 
retroactive effect.^ 

When the conventions met in the various states, 
the military authority was required to settle vari- 

1 E.g., Hancock's Special Orders, No. 40, of February 22, 1868. 
Report of Secretary of War, p. 232. 

2 Pope's report, annexed to Report of Secretary of War for 1867. 
" Ann. Cyc. for 1867, p. 699. 



DURING RECONSTRUCTION 1 73 

ous questions connected with their financial opera- 
tions. As we have seen, the conventions were 
authorized by law to levy and collect taxes on 
property for the payment of the delegates and for 
other expenses. One of the first acts in each con- 
vention was to fix the salary of delegates — at a 
figure generally that aroused much enthusiasm 
among the negro members. But to await the 
levy and collection of a tax before enjoying the 
emolument of office was a possibility that seriously 
damped the ardor of the constitution-makers: in 
fact, in view of the poverty of the people in gen- 
eral and the antagonism of the whole tax-paying 
class to the convention, such delay threatened 
the further process of reconstruction with failure. 
Hence recourse was had at once to the expedient 
of an advance from the state treasury for immedi- 
ate expenses on the security of the tax that was 
levied by the convention. Such advance was 
ordered by the commanders,^ as no authority of 
state law for this appropriation of funds could be 
found. But the power of the commanders was 
called upon to restrain as well as to promote the 
activity of the conventions. There was a marked 
tendency on the part of these bodies to arrogate 
to themselves governmental as well as constituent 
functions, and to exceed the limits of the task pre- 

1 It was for refusing to issue tlie warrants in conformity to this 
order that the governor and financial officers of Georgia were re- 
moved by General Meade. — Ante, p. 155. 



174 MILITARY GOVERNMENT 

scribed by the terms of the Reconstruction Acts. 
This tendency the commanders firmly repressed. 
In Mississippi, among other manifestations of this 
spirit, the ordinance for the levy and collection of 
the tax to cover the convention's expenses was 
cast in a form that General Gillem refused to 
approve. His refusal to enforce it caused the 
convention to repeal it and pass another that was 
satisfactory to the general.^ This episode illus- 
trates the fact that, in the plenitude of their 
powers as absolute rulers, the generals were 
above the constituent assemblies of the inchoate 
new states as distinctly as they were above the 
governmental organs of the expiring old states. 

The foregoing review reveals how far-reaching 
was the authority of the military commanders in 
the practical operations of state government. It 
would be hard to deny that, so far as the ordinary 
civil administration was concerned, the rule of the 
generals was as just and efficient as it was far- 
reaching. Criticism and denunciation of their acts 
were bitter and continuous ; but no very profound 
research is necessary in order to discover that the 
animus of these attacks was chiefly political. The 
instincts and traditions of popular government 

1 Report in Report of Secretary of War, 1868, p. 585 et seq. 
One clause of the second ordinance, which imposed a tax on rail- 
roads contrary to an exemption in their charters, was annulled by 
General Gillem. 



DURING RECONSTRUCTION 175 

would permit no recognition of excellence in any 
feature of arbitrary one-man rule ; and the whole 
system, moreover, was, in the eyes of the critics, 
hopelessly corrupted by the main end of its estab- 
lishment — negro enfranchisement. The influence 
of this end was, in truth, so all-pervading that a 
judgment on the merits of the administration of 
the generals apart from it is almost impracticable. 
Yet equity and sound judgment are sufficiently dis- 
cernible in their conduct of civil affairs to afford a 
basis for the view that military government, pure 
and simple, unaccompanied by the measures for 
the institution of negro suffrage, might have 
proved for a time a useful aid to social readjust- 
ment in the South, as preliminary to the final 
solution of the political problems. But the op- 
portunity for the most profitable employment of 
such government had passed when, through Presi- 
dent Johnson's policy, civil functions had been 
definitely assumed by representative organizations 
in the states. There would have been, indeed, 
substantial merit in the consistent application of 
either the Presidential or the Congressional policy 
in reconstruction ; but there was only disaster in 
the application of first the one and then the other. 



THE PROCESS OF RECONSTRUCTION 

Military government in the South, 1867-70, was 
merely incidental to reconstruction proper. The 
maintenance of order was but a negative function 
of the district commander under the Reconstruc- 
tion Acts ; his positive and most characteristic 
duty was that of creating in each state subject 
to him a political people. Having given to such a 
people a definite existence, he was furthermore to 
communicate to it the initial impulse toward the 
organization of a government for itself, and then 
to retire into the background, maintaining an atti- 
tude of benevolent support until Congress should 
decree that the new structure could stand alone. 
The purpose of this essay is to sketch the proceed- 
ings incident to the performance of these duties. 



The creation of a people in each state was to be 
effected by a registration of those citizens whom 
Congress had declared qualified to perform political 
functions. The Reconstruction Acts contemplated 
both additions to, and subtractions from, the people 
of the states as hitherto defined. Enfranchisement 
of the blacks was to be accompanied by disfranchise- 

176 



THE PROCESS OF RECONSTRUCTION 177 

ment of the whites. Not that distinctions of color 
were embodied by express terms in the laws ; noth- 
ing so invidious would have been tolerated at that 
date, and nothing of the kind was necessary. 

The enfranchisement of the blacks was fully 
provided for in the single clause of the act of 
March 23, 1867, requiring each commander to 
''cause a registration to be made of the male 
citizens of the United States, twenty-one years 
of age and upwards, resident in each county or 
parish in the state or states included in his dis- 
trict," so far as such citizens were qualified to vote 
under the act of March 2. The latter act had 
contemplated a convention in each state *' elected 
by the male citizens of said state, twenty-one years 
old and upward, of whatever race, color or previous 
condition." Under these clauses the inclusion 
of the blacks as a part of the political people in 
the South was as complete and unqualified as 
language could make it. 

When, on the other hand, the disfranchisement 
of whites is considered, the Reconstruction Acts 
were far less exact ; their language reflected the 
marked differences of opinion that existed in the 
dominant party on this subject. The feeling that 
prominent rebels should not be allowed to resume 
at once the political leadership they had formerly 
enjoyed had been very strong, and had been ex- 
pressed in the proposed fourteenth amendment 
to the constitution. But with the definite adoption 



1/8 THE PROCESS OF RECONSTRUCTION 

of negro suffrage many Republicans manifested a 
reaction from the earlier feeling. It was thought 
that the anticipated evils of the black vote might 
perhaps be mitigated by giving all the whites an 
equal part in politics ; and doubtless some felt that 
the imposition of negro suffrage and the prospect 
of negro domination constituted a sufficient punish- 
ment for the leaders in rebellion. Others, again, 
among them some of the most extreme radicals, 
found a certain doctrinaire satisfaction in coupling 
with "universal suffrage" the principle of ''uni- 
versal amnesty." By the first Reconstruction Act 
all were excluded from taking part in the elections 
who " may be disfranchised for participation in the 
rebellion, or for felony at common law." By the 
supplementary act of March 23 the oath prescribed 
to be taken by every appUcant for registration em- 
bodied an additional and much more definite dis- 
qualification. Among other requirements, each was 
obliged to swear or affirm as follows : 

That I have never been a member of any state legislature, 
nor held any executive or judicial office in any state, and 
afterwards engaged in an insurrection or rebellion against 
the United States, or given aid or comfort to the enemies 
thereof; that I have never taken an oath as a member of 
Congress of the United States, or as an officer of the United 
States, or as a member of any state legislature, or as an 
executive or judicial officer of any state, to support the con- 
stitution of the United States, and afterwards engaged in 
insurrection or rebellion against the United States, or given 
aid or comfort to the enemies thereof. 



THE PROCESS OF RECONSTRUCTION 179 

The general purpose of these provisions is clear. 
As against the two classes of extremists in Con- 
gress, who on the one hand wished to disfranchise 
all who had participated in the rebellion, and on 
the other would give the ballot to all, a middle 
opinion prevailed, and the same test was applied 
in the matter of voting that had been embodied in 
the proposed fourteenth amendment as to hold- 
ing office. A stigma was put upon those who had 
led the mass of the Southern people astray. But 
while the disfranchisement of rebels who, before 
becoming such, had held office was obviously the 
general purpose of the laws, the application of the 
provisions in practice gave rise to a host of diffi- 
culties in detail. Who were to be regarded as 
** disfranchised for participation in the rebellion " } 
Was a man's word to be taken on the subject, or 
was some other evidence to be sought for .? Could 
the phrase be construed to exclude all who had 
taken part in the rebellion } Again, were all rebels 
disqualified who before engaging in insurrection 
had held state office, or only such as had, in con- 
nection with such office, taken the oath to support 
the constitution of the United States .? And what 
was the scope of the phrase "executive or judicial 
office in any state".!* Did it include municipal 
offices, and all the petty administrative and judicial 
positions? Further, what was meant by "en- 
gaging in rebellion" and by giving "aid or com- 
fort " to enemies of the United States t Had the 



l80 THE PROCESS OF RECONSTRUCTION 

Confederate conscript engaged in rebellion as well 
as the Confederate volunteer ? And did the giving 
of food and drink and clothing to the Confederate 
soldiers constitute giving aid or comfort to the 
enemies of the United States ? All these and 
many other questions confronted the district com- 
manders as soon as preparations for the registra- 
tion were begun. Appeals for an authoritative 
construction of the law on these points came to 
Washington from all the districts.^ Under date 
of May 24 the attorney-general submitted an elab- 
orate opinion on the whole subject, a summary of 
which was afterwards transmitted to the district 
commanders. 

In most respects Mr. Stanbery's interpretation 
as to disfranchisement was unexceptionable. 
While tending, as in his views on military gov- 
ernment, to strict restraint of the commander's 
discretion, he found few questions upon which he 
could fairly devise a construction that differed 
from that of the radicals. As subject to dis- 
franchisement he included all officers of the 
United States, civil and military, and all civil 
officers of any state who had, prior to rebellion, 
taken the oath to support the constitution of the 
United States. But neither municipal officers, 
like mayors, aldermen and policemen, nor persons 

^ For formal applications for such construction by Generals Scho- 
field, Ord and Sheridan, see Sen. Ex. Doc, 1st sess., 40th Cong., No. 
»4, PP- i5» 140, 193- 



THE PROCESS OF RECONSTRUCTION l8l 

who exercised mere agencies or employments 
under state authority, Hke commissioners of public 
works, bank examiners and notaries public, were 
disqualified for registration. As to engaging in 
rebellion, Mr. Stanbery absolved from responsi- 
bility for such an offense all conscripts who would 
not voluntarily have joined the army, and all offi- 
cials who, during the rebellion, discharged func- 
tions not incident to war, but merely necessary to 
the preservation of order and the administration of 
law. And again, "aid or comfort to the enemy " 
he held was not involved in mere acts of charity, 
where the intent was rather to relieve the indi- 
vidual than to aid the cause. But organized con- 
tributions of food and clothing for the benefit of 
all persons concerned in insurrection would sub- 
ject contributors to disfranchisement. So also 
forced payments of taxes or assessments would not 
disqualify those who paid ; but voluntary loans to 
the Confederate government, or the purchase of its 
securities, would disqualify. 

On most of these points the attorney-general's 
interpretation had been anticipated in provisional 
regulations prescribed by the various commanders. 
There were some statements in the opinion, how- 
ever, which excited almost as much dissent in Con- 
gress as the administration's view on the relation 
of the military commanders to the civil authorities.^ 
Chief of these was Mr. Stanbery's declaration that 

1 Cf. the preceding essay, passim. 



l82 THE PROCESS OF RECONSTRUCTION 

the taking of the prescribed oath by the applicant 
was conclusive upon the registering officers as to 
his right to be placed upon the list of voters. No 
authority was given to the board of registration, 
said the attorney-general, to make any further in- 
vestigation of the applicant's qualifications. If he 
swore falsely, he was liable to prosecution for per- 
jury, and that was the end of the matter. It was 
easy to perceive that, in the existing condition of 
public sentiment in the South, a prosecution for 
perjury afforded a very slight guarantee against 
illegal registration. Again, Mr. Stanbery's opinion 
was stoutly assailed where he held subject to dis- 
franchisement only such state officers as had taken 
the oath to support the constitution of the United 
States. This rule, like other features of his opinion, 
seemed likely to admit too freely to the franchise. 
The perversity of the administration in respect 
to registration was checked, like that in respect to 
the military government's authority, by the supple- 
mentary act of July 19. By this Congress declared 
explicitly that the registering officers had the 
power and the duty, in considering an applicant 
for registration, 

to ascertain, upon such facts or information as they can obtain, 
whether such person is entitled to be registered . . . ; and 
the oath required by said act [act of March 2] shall not be 
conclusive on such question . • . ; and such board [of regis- 
tration] shall also have power to examine under oath . . . 
any one touching the qualification of any person claiming 
registration. 



THE PROCESS OF RECONSTRUCTION 183 

The act further provided that disfranchisement 
should extend to every one who had been in the 
legislature or who had held executive or judicial 
office in any state " whether he has taken an oath 
to support the constitution of the United States or 
not"; and construed the words "executive or judi- 
cial office in any state" to include "all civil offices 
created by law for the administration of any general 
law of a state or for the administration of justice." 
And finally, in order to exclude all possibility of 
Presidential extension of the franchise, it was en- 
acted that no person should acquire the right to 
registration through any pardon or amnesty. 

Through this legislation the rules of disfran- 
chisement were fully determined. There was ob- 
viously much room left for construction by the 
registering officers in application of the rules to 
particular cases. Where, as in the determination 
whether a man had "engaged in rebellion," the 
whole question might be made to turn on the 
subjective motive of a given act, there was abun- 
dant room for discretion. A much-discussed case 
was that of a hypothetical parent who sent food 
and clothing to his son, serving in the Confeder- 
ate army,i but who had in no other way given aid 
or comfort to enemies of the United States. He 
must be disfranchised or not according as the 

1 Generals Schofield and Pope held that giving food or clothing 
would not disfranchise, but that giving a horse would. — Reports for 
1867. 



1 84 ^'^^^" PROCESS OF KECOXSTRUCTION 

chief motive was regard for the son or regard for 
the cause. A trained casuist would be troubled 
to deal with the case ; the boards of registration 
had as a rule a very small proportion of trained 
casuists among them. 

As a matter of fact the boards of registry had 
been carefully constituted with a view to prevent 
evasions of the disfranchising clauses. By the act 
of ]\Iarch 23 the registration and elections were 
to be conducted by boards of three, appointed 
by the district commanders and consisting of 
•'loyal officers or persons"; and loyalty was in- 
sured by the requirement that all officers of regis- 
try should take the oath prescribed by the act of 
July 2, 1862 — the famous '* iron-clad oath." ^ The 
utmost care was taken in every district that the 
purpose of this provision should be fulfilled. Gen- 
eral Schofield, in selecting registration officers, gave 
preference, first, to officers of the army and of the 
Freedmen's Bureau ; second, to honorably dis- 

1 " I ... do solemnly swear that I have never voluntarily 
borne arms against the United States since I have been a citizen 
thereof; that I have voluntarily given no aid, countenance, counsel 
or encouragement to persons engaged in armed hostility thereto; 
that I have never sought nor accepted nor attempted to exercise 
the functions of any office whatever, under any authority or pre- 
tended authority in hostility to the United States; that I have not 
yielded a voluntary support to any pretended government, author- 
itv, power or constitution within the United States, hostile or in- 
imical thereto; and . . . that ... I will support and defend the 
constitution of the United States against all enemies, foreign and 
domestic," etc., etc. 



THE PROCESS Of RECONSTRUCTION 1 85 

charged Union soldiers ; and third, to loyal citi- 
zens of the particular locality.^ General Pope 
deemed it inadvisable to employ soldiers in this 
work, but constituted the boards exclusively of 
citizens, including in every case one negro. This 
bold recourse to the employment of the blacks, in 
addition to the influence it exerted in stimulating 
a large registration of the race, had the further 
advantage of overcoming the difficulties of scant 
material. Especially in the fourth and fifth dis- 
tricts the number of white men who could take 
the test oath was very small. In some localities 
it was practically impossible to find three such 
persons to constitute the registration board. For, 
besides the ability to take the oath, there was 
necessary also the willingness to take it and the 
intelligence to perform the duties of office. The 
state of public sentiment in the South was not 
such as to encourage timid men to proclaim pub- 
licly that their sympathies during the war had 
been with the North ; ^ nor, where this difficulty 
might be overcome, was the intellectual equip- 
ment of the candidate apt to be on a par with 
his courage. That the registration was effected, 
under the circumstances, in any tolerable form 

1 Report for 1867. 

2 Cf. Ord, in his report for 1867 : " In the majority of counties in 
my district there are but very it^s men who can take the test oath, 
and these are not disposed to defy public opinion by accepting 
oSce." 



1 86 THE PROCESS OF RECONSTRUCTION 

whatever, is in itself a tribute to the efficiency of 
the military authorities. Like the practice adopted 
in appointments to office under the existing gov- 
ernments, the use of the test oath in the registra- 
tion and election boards tended to elevate into 
political prominence a class which lacked the moral 
authority to conduct government in the Southern 
states.-^ The organization and activity of these 
boards gave coherence and dignity to the element 
of Northern sympathizers of which they were 
composed, and contributed very greatly to the 
development of the Republican Party, already 
started on its career in the South. There can 
be no doubt that, for the ends in view, the pro- 
visions of the Reconstruction Acts requiring the 
test oath for members of the registry boards were 
necessary. There is just as little doubt that the 
exclusion of the dominant element of the white 
population from active and official part in the 
reconstruction added much to the bad feeling 
which, without this particular stimulus, would have 
been serious enough. 

The process of registration occupied the summer 
of 1867. By the act of March 23 it was to have 
been completed by September i ; but the diffi- 
culties and delays that arose in the fourth and 
fifth districts led to an extension of the time to 
October i, by the act of July 19. After the 
completion of the registration the next duty of the 

1 Supra, p. 150. 



THE PROCESS OF RECONSTRUCTION 187 

commanders was to provide for an election in each 
state, at which the registered voters should express 
their will, first on the question as to whether a 
constitutional convention should be held, and sec- 
ond, on the choice of delegates to such convention. 
The number of delegates was fixed by the act of 
March 23, but the details of apportionment were 
left to the commanders. 

At the outset the impulse of the disfranchised 
leaders in the South had been to throw all their 
influence against any participation by their follow- 
ers in the reorganization of the states. "Refuse to 
register," was the cry raised in many quarters; 
''have no concern in the establishment of black 
rule ! " Military government was declared to be 
preferable to negro domination : better the tyranny 
of the intelligent one than that of the ignorant 
many. But as a matter of policy it was soon dis- 
cerned that abstention from registration would be 
less effective than participation therein. In dis- 
cussing the Reconstruction Acts the radicals in 
Congress had manifested much sensitiveness to 
possible charges that they aimed to establish at 
the South minority governments, supported by 
bayonets. It was less important, they held, that 
new governments should be established, than that 
these governments should be fully representative 
of the whole people, white as well as black.^ That 
the new state constitutions, therefore, should cer- 

1 Cf. Cong. Globe, ist sess., 40th Cong., pp. 143-151. 



1 88 THE PROCESS OF RECONSTRUCTION 

tainly be based upon the action of a majority, it 
was provided by the act of March 23 that in the 
elections, both on the calling of a convention and 
on the ratification of the constitution, the vote 
should be valid in the affirmative only if at least 
half of the registered voters took part. In view 
of these provisions the effective way in which to 
thwart reconstruction was to register but refrain 
from voting. This accordingly became the policy 
of the extremists in the South. As a consequence 
the registration proved very successful as to num- 
bers ; the subsequent voting proved far less so. 
The following table exhibits some features of the 
result : ^ 





Registered 


Vote on holding 
Convention 




WHITE 


COLORED 


FOR 


AGAINST 


Virginia 


120,101 


105,832 


107,342 


61,887 


North Carolina 


106,721 


72,932 


93,006 


32,961 


South Carolina 


46,882 


80,550 


68,768 


2,278 


Georgia 


96,333 


95,168 


102,283 


4,127 


Alabama 


61,295 


104,518 


90,283 


5,583 


Florida 


11,914 


16,089 


14,300 


203 


Mississippi "^ 


TOTAL : 


139,690 


69,739 


6,277 


Arkansas ^ 


), 


66,831 


27,576 


13,558 


Louisiana 


45,218 


84,436 


75,083 


4,006 


Texas 


59,633 


49,497 


44,689 


11,440 



From this it appears that in four of the states — 
South Carolina, Alabama, Florida and Louisiana 



1 Compiled from House Ex. Doc, No, 53, 2d sess., 40th Cong. 

2 No distinction by color made in registering. 



THE PROCESS OF RECONSTRUCTION 189 

— the new electorates embodied pronounced negro 
majorities: in three — Virginia, North Carolina 
and Texas — the whites were in more or less con- 
siderable excess ; and in one, Georgia, the races 
were very evenly balanced. Of the two states in 
the fourth district, where General Ord felt that 
the spirit of the reconstruction policy was opposed 
to any distinction of voters by color, Mississippi 
belonged notoriously to the class in which the 
blacks were in the majority, and Arkansas to that 
in which they were in the minority.^ As to the 
number of persons disfranchised by the operation 
of the laws, no trustworthy figures were attainable. 
By various methods of estimate, more ingenious 
than convincing, the commanders arrived at hy- 
pothetical results in some states : e.g., Virginia, 
17,000; North Carolina, 12,000; South Carolina, 
9000; Georgia, 10,500; but no especial validity 
was attached to the figures. 

As to the attitude of the whites on the hold- 
ing of conventions, the insignificant negative vote 
in most of the states is eloquent. The policy of 
abstention was not, however, successful in any 
state at this time.^ It happened, indeed, that just 
at the time of th« voting a hopeful feeling pre- 

1 In i860 the population stood as follows: 

WHITE BLACK WHITE BLACK 

Mississippi 353,899 437,404 Arkansas 324,143 111,259 

2 It will be seen by the table that the excess of the vote over 
half the registration was small in most of the states, and particularly 
so in Florida and Texas. 



IQO THE PROCESS OF RECONSTRUCTION 

vailed in the South, due to general Democratic 
gains in Northern state elections in the autumn, 
and especially to the rejection of a negro-suffrage 
amendment in Ohio by 50,000 majority. Under 
the influence of these events many Southern 
whites who had resolved upon abstention actually 
voted, trusting to be saved by the Democracy 
from the most dreaded consequences of black 
rule. Moreover, the whole influence of the mili- 
tary authorities was directed toward securing a 
large vote, and various devices of the Conserva- 
tives for keeping the negroes from the polls were 
met by orders from headquarters that were hardly 
compatible with accepted ideas as to regularity at 
elections. As in the registration, so in the voting, 
the generals assumed with the most unconven- 
tional frankness that their duty required them to 
insure the participation of the newly enfranchised 
citizens. Not the passive possession, but the 
active exercise, of political rights by the negroes 
was held to be the essential principle of the Re- 
construction Acts. The limits of time set for the 
registration were repeatedly extended, to secure 
a full enrollment of the blacks ; and when the 
elections came the same expedient was employed 
to secure a full vote. General Schofield, in Rich- 
mond, finding at the time set for closing the polls 
that in certain precincts many blacks had failed to 
vote, forthwith issued an order extending the time 
and permitted votes to be received for twenty-four 



THE PROCESS OF RECONSTRUCTION 191 

hours longer. The result was to reverse the 
choice of delegates to the convention from one 
district.^ In Georgia also two additional days 
were, after the voting had begun, added to the 
three fixed for the elections in the original order. 
These measures, it will be perceived, affected not 
only the issue as to whether a convention should 
be held, but also the membership of that body if 
the vote resulted in favor of its assembling ; for 
both matters were voted upon at the same time. 
As party organization then stood, a large negro 
vote meant a Radical majority in the convention. 

The measures just noticed were designed to 
counteract the effects of the negroes' own igno- 
rance or lack of experience at the polls. In the 
orders regulating the elections, the commanders 
had embodied very explicit injunctions to prevent 
the whites from interfering with the other race. 
Not only force and intimidation, but also threats 
of discharge from employment and other like 
methods of "discouraging" the participation of 
the blacks, were made offenses subject to military 
jurisdiction. 2 Moreover, from the beginning of 
their authority the commanders had contributed 
much to disorganize opposition to reconstruction 

1 For the protest of candidates and the general's reply, see Report 
of Secretary of War for 1867, p. 389 et seq. The general's justifi- 
cation is clever but somewhat sophistical, as it evades the most 
serious element in the case of the protestants. 

2 Cf. Pope, Gen. Orders, No. 59, Ann. Cyc. 1867, p. 27. 



192 THE PROCESS OF RECONSTRUCTION 

by requiring office-holders, on penalty of dismissal, 
to abstain from all share in such opposition. It 
was in the office-holding class that the natural and 
customary leaders of the old political people were 
to be found. General Pope had gone even further 
in direct promotion of the new policy by decree- 
ing that the printing patronage of the state should 
be given to such newspapers only as should not 
oppose reconstruction.^ The general's own report 
concedes that the effect of this order in silencing 
the press was not all that might have been de- 
sired ; but it must have had some influence in 
developing support for the policy he represented. 
Much complaint was made in the South and else- 
where that the orders just mentioned involved 
a policy of arbitrary restriction upon freedom of 
speech and of the press. No such general policy 
was adopted by any commander. The require- 
ment upon office-holders was no more restrictive 
of free speech than the orders of modern days in 
respect to "offensive partisanship" and "perni- 
cious activity," and may fairly be regarded as 
indispensable to the performance by the com- 
manders of their official duties. General Pope's 
newspaper order was perhaps less defensible ; but 
it merely adopted in the open the policy which 
was quietly but consistently pursued by legisla- 
tive bodies, both state and national, of assuring 
an official subsidy to that part of the press that 

1 Report for 1867. 



THE PROCESS OF RECONSTRUCTION 193 

was in sympathy with the dominant party in the 
government. 1 As a whole, while the military 
authorities gave much positive support to the 
developing party of reconstruction in the South, 
and while a surveillance was exercised over press 
and platform to prevent incitations to violence, it 
cannot fairly be said that freedom of speech and 
the press was interfered with. Indeed, the lati- 
tude permitted by the commanders was perhaps 
accountable for many of the difficulties met with 
in bringing reconstruction to its conclusion. The 
policy of the generals, in fact, is strongly sugges- 
tive of the ancient maxim of benevolent des- 
potism : "Let my subjects say what they like, 
so long as I may do what I like."^ 



II 

The constitutional conventions determined upon 
by this first election were in session during the 
winter of \'^6'j-6'^, and most of them had fulfilled 
their function by the middle of the ensuing spring. 
As required by the Reconstruction Acts, the time 
and place of the conventions were set by orders 
from the military headquarters of the respective 

1 Cf. the Sundry Civil Appropriation Act of March 2, 1867, sec. 7, 
designed to assure federal patronage in the South to papers sup- 
porting reconstruction. 

2 For two incidents illustrating the relation of the military au- 
thorities to the press, see Ann. Cyc, 1867, pp. 51 and 520. 

o 



194 THE PROCESS OF RECONSTRUCTION 

districts. Naturally, there was an ostentatious 
exchange of civilities between each convention 
and the district commander, as well as a less 
public but very powerful current of influence run- 
ning from headquarters to the convention hall. 
The opponents of reconstruction denounced with 
great severity the subservience of the constitution- 
makers of a ** sovereign state" to a "military 
satrap." As a matter of fact, however, the gen- 
erals did stalwart service for the cause of con- 
servatism, and hence for the interests of the class 
by whom they were abused. It was inevitable, 
under all the circumstances of the situation, that 
radical ideas, social and economic as well as politi- 
cal, should be strongly represented among the 
members of the conventions. Southern Union- 
ists, in whom rankled the memories of long op- 
pression and ostracism, ambitious Northerners, 
filled with ideals of a new South modeled on the 
lines of New England, and negroes ^ less than 
three years out of slavery, were the classes numeri- 
cally most important in the conventions. Modera- 
tion was hardly to be anticipated from any of 
these. There was, however, an element of sober 

1 The following was the division of delegates on the color line, 
so far as fiofures have been obtainable : 



WHITE 


BLACK 




WHITE 


BLACK 


Virginia 80 


^-5 


Georgia 


133 


zz 


North Carolina 107 


13 


Florida 


28 


18 


South Carolina 34 


63 


Alabama 


92 


16 






Texas 


81 


9 



THE PROCESS OF RECONSTRUCTION 195 

and substantial Southerners — representatives, for 
the most part, of the professional and business 
classes who had voluntarily withdrawn from 
politics when the Whig Party disappeared — on 
whom it now devolved to wield a decisive influ- 
ence against radicalism. It was to the judicious 
policy of this class, supported by the moral force 
of the military commanders, that was due the 
moderate character, as a rule, of the new con- 
stitutions. 

No influence, however, was strong enough to 
keep in the background the many non-political 
questions involved in the relations of the races. 
Debates were long and vehement on a variety of 
propositions which ultimately failed of adoption in 
most states. Among the mooted points were the 
expediency of giving freedmen a claim against 
their masters for services rendered in slavery after 
the date of the Proclamation of Emancipation ; 
the admission of blacks and whites to the same 
schools ; the freedom of intermarriage between 
the races ; ^ and the recognition of equal rights in 
public places and conveyances as incidental to 
equality in civil rights. On the last point the 
Radicals were to a great extent successful. It was 

1 In almost every convention the Conservatives proposed a con- 
stitutional prohibition upon intermarriage. In several cases the ne- 
groes, with a certain grim humor, agreed to accept the proposition 
on condition that an additional clause should provide that any white 
man cohabiting with a negro woman should be punishable by death. 



196 THE PROCESS OF RECONSTRUCTION 

upon the question of the suffrage, however, that 
differences of opinion were most obstinate ; and 
here also the Radicals in a number of states pre- 
vailed over all restraining forces. 

By section five of the first Reconstruction Act 
Congress had in effect required that the new con- 
stitutions should secure the franchise to all male 
citizens twenty-one years of age and ''not dis- 
franchised for rebellion or felony." No option was 
left as to the enfranchisement of the negroes ; as to 
disfranchisement of the whites the quoted phrase 
left the conventions with free hands. In six of the 
states this liberty resulted in a proscription of the 
late secessionists.^ Alabama, Arkansas, Missis- 
sippi, Texas and Virginia denied the franchise to 
those whom the proposed fourteenth amendment 
disqualified for office, i.e.^ those who, after having 
taken the official oath to support the constitution, 
had gone into rebellion.^ Alabama and Arkansas 
added to the disfranchised any who had " violated 
the rules of civilized warfare," — a provision di- 
rected chiefly at those who had refused to accord 
to negro soldiers the customary military treatment. 

1 The constitutions are all in Poore's collection. Abstracts, giv- 
ing the franchise clauses, may be found in McPherson, Reconstruc- 
tion, p. 326 et seq. 

2 This section of the Virginia convention's draft failed of ratifica- 
tion. On the other hand, in the first three of the states enumerated 
the disqualification was made somewhat more severe by applying 
it to all who were excluded from registration under the Reconstruc- 
tion Acts. 



THE PROCESS OF RECONSTRUCTION 197 

Louisiana, whose provisions were perhaps the 
most severe of all, disqualified all who had held 
military or civil office for as long as a year in the 
Confederacy, all who wrote or published news- 
paper articles or preached sermons "in advocacy 
of treason," and all who voted for or signed the 
ordinance of secession. Eligibility to office was 
in most states denied on the same grounds as the 
right to vote. Mississippi, however, made ineligi- 
ble all who voted for secession and all who held 
office under the Confederacy, together with every 
one who voluntarily gave aid or encouragement to 
the Confederates;^ and Virginia achieved the 
same purpose by requiring the iron-clad oath of 
every officer. ^ 

These proscriptive provisions of the new con- 
stitutions were for the most part not absolute in 
their terms. Recourse was had in Louisiana to 
that expedient, common in the political and reli- 
gious commotions of recent centuries, which puts a 
premium on self-stultification : the removal of his 
disabilities was offered to any man who would 

1 This provision contained a clause the motive of which seems 
somewhat obscure : " Provided, that nothing in this section, except 
voting for or signing the ordinance of secession, shall be so con- 
strued as to exclude from office the private soldier of the late 
so-called Confederate states army." This probably reflects the 
familiar sentiment, that maintenance of one's convictions by physi- 
cal force is essentially nobler than by moral or intellectual activity. 

2 This was carried in convention against a very energetic protest 
by General Schofield. Cf. Ann. Cyc. for 1868, p. 759. 



198 THE PROCESS OF RECONSTRUCTION 

publicly acknowledge that the late rebellion was 
morally and politically wrong and express regret for 
his participation therein. ^ In Alabama, Arkansas 
and Mississippi works rather than professions were 
assumed as the proper test of political regeneration, 
and relief from disabilities was ipso facto secured to 
any one who had ** openly advocated " or '' voted 
for " or " aided in " the reconstruction and who 
accepted the equality of all men. Most of the con- 
stitutions also authorized the legislatures, generally 
by extraordinary majority, to remove disabilities. 
The incorporation in the office-holder's oath of a 
clause expressing acceptance of ''the civil and 
political equality of all men before the law " was a 
common feature of the new constitutions. There 
was of course nothing of a proscriptive or stulti- 
fying character in this : for the phrase denoted 
legal obligation, not moral conviction, on the part 
of one who adopted it. 

Alabama was the first of the states in which the 
work of the constitutional convention was con- 
cluded. Between November 5, 1867, when the 
Alabama convention adjourned sirie die, and May 
15, 1868, when the draft of Mississippi's consti- 
tution was completed, all the other states save 

^ This adaptation of the theological doctrine of repentance and 
confession to the exigencies of political life need not be taken to 
signify a peculiarly keen moral and religious sense in Louisiana, as 
the history of her politics in the years immediately following very 
clearly shows. 



THE PROCESS OF RECONSTRUCTION 1 99 

Texas reached a like stage in the process of re- 
organization. The next step required by the 
Reconstruction Acts was the submission of each 
draft constitution to the registered voters of the 
state for ratification. For the purposes of this 
election the qualification of voters and the author- 
ity of the commanders ^ were the same as in the 
previous election. The contest throughout the 
South assumed a distinctly fiercer form during 
this second canvass. Race and class animosity 
had been whetted by the discussions centering 
about the conventions ; the provisions of the new 
constitutions afforded definite issues on which 
party organizations, hitherto inchoate, were 
molded into efficiency ; and the bearing of the 
results of the elections on national issues and on 
the outcome of the approaching Presidential can- 
vass brought into play influences from without 
that in no way tended to allay the bitterness 
within the states. 

Party lines, so far as they were drawn at all in 
the rebel states under the Presidential regime, fol- 
lowed ante-be Ihini prejudices. Though very ener- 
getic efforts were made in 1865-66 by the leaders 
of the National Republican Party to extend their 
organization throughout the South, the results were 
not satisfactory. Few Southern whites ventured 
to identify themselves with a name of such evil 

1 Except as to the date of the vote, which was fixed by the con- 
vention itself. 



200 THE PROCESS OF RECONSTRUCTION 

repute in their section, and so far as it achieved 
coherence at all the party consisted mainly of 
Northerners. The Democratic Party also failed 
to attract into full fellowship the leading South- 
erners. The white Unionists, who were most 
conspicuous in the political people and the state 
governments established under Presidential aus- 
pices, were mostly of Whiggish antecedents, and 
had supported Bell and Everett in i860. To them 
Democracy meant in the South secessionism and 
in the North economic and political heresy. On 
the vital and pressing questions touching the status 
and the future of the freedmen opinion in the South 
was commonly classified as *' radical" and "conserv- 
ative," and these terms were assumed as the 
official titles of various organizations in the elec- 
tions of 1866. In some states the name " Con- 
stitutional Union Party " was employed by the 
conservatives, suggesting the consciousness of 
affinity with the ideas represented by Bell and 
Everett in i860. But upon the adoption by Con- 
gress of the policy expressed in the Reconstruction 
Acts a readjustment of opinion and organization 
began. Conservatives and Radicals at once put 
forth every effort to draw into their respective 
camps the freedmen, now the decisive factor in 
politics, but the success of the latter, prepared by 
the widespread formation of Union Leagues and 
by the teachings of the Freedmen's Bureau, was 
soon apparent to all. The Radical organizations, 



THE PROCESS OF RECONSTRUCTION- 201 

deserted by most of the Southern whites who had 
still clung to them, but swollen by the hosts of 
newly enfranchised freedmen, assumed everywhere 
the name of Republican and established relations 
with the national organization of that party. 
Among the Conservatives divided counsels for a 
time prevailed. Most were for opposing recon- 
struction a rotitrajice ; but some still hoped, by 
accepting negro suffrage, to preserve a control 
over the blacks, though without joining the 
Radical Party. This hope however, practically 
disappeared during the process of reconstruction, 
and the end of that process revealed in every state 
a coherent organization bearing the name and sup- 
porting the policy of the National Democratic 
Party. On the question of ratifying the constitu- 
tions framed by the conventions, party lines were 
perfectly clear, and party feeling was intensified 
in bitterness by the consciousness that the issue 
was indisputably that of race domination. 

In view of the extreme feeling that prevailed, 
especially in the states whose new constitutions 
contained disfranchising provisions, the responsi- 
bility of the district commanders became exceed- 
ingly heavy as the elections approached. The 
letter of the law required that the military power 
should assure to every registered voter an oppor- 
tunity to express his will. It was not difficult to 
construe the spirit of the law as requiring that the 
policy of Congress should not be allowed to fail 



202 THE PROCESS OF RECONSTRUCTION 

through the defeat of the constitutions. Most of 
the commanders maintained a rigorous adherence 
to the letter of their authority, and in their regula- 
tions for the conduct of the elections displayed a 
very high degree of practical wisdom.^ General 
Pope, however, always inclined to radical measures, 
infused into his orders for Alabama rather more of 
the partisan spirit than the President was disposed 
to put up with, and accordingly General Meade 
was appointed to supersede him in January, 1868. 
On two questions having an important partisan 
bearing, General Pope had taken radical ground. 
Election ofificers had been authorized to receive 
the votes of persons who were not registered in 
the precinct at which they offered to vote ; and 
voting for state officers was permitted at the same 
time with the voting on the constitution. Both 
these expedients were in the interest of Repub- 
lican success in the state, and both afforded great 
facilities for fraud ; but the first would enable very 
many negroes to vote, who in the unsettled condi- 
tions of the time had changed their domicile since 
registration, and the second would hasten the in- 
auguration of the new regime. The most serious 
objection to the double elections lay in the fact 

^ Cf. especially the report of General Gillem on the election in 
Mississippi, annexed to Report of Secretary of War for 1868. The 
excellent work in this case was the result of the lessons learned in 
some very unfortunate experiences in Arkansas several months 
earlier, on which, cf. same report. 



THE PROCESS OF RECONSTRUCTION 203 

that very many of the Republican candidates for 
office 1 were at the same time election officials, 
charged with the supervision of the vote in which 
they had so intimate an interest.^ But General 
Pope had only anticipated a policy which was about 
to receive a high and conclusive endorsement. 

The radical leaders in the Fortieth Congress 
were as watchful in the winter of iZ^y-^^ as they 
had been in the preceding spring and summer for 
the promotion of their policy in the South. No 
point was to be lost that could contribute to the 
success of reconstruction. In view of recent 
successes of the Democrats in the North a Re- 
publican state more or less in the South might 
decide the next Presidential election. The chief 
uncertainty as to the outcome of the vote on rati- 
fying the constitutions in the South turned upon 
the requirement that a majority of the registered 
voters should participate in the election in order 
that a result favorable to ratification should be 
valid. A bill to eliminate this requirement and 
make a majority of the persons voting sufficient to 
ratify, and also to authorize voting for state offi- 
cers and congressmen at the same election, was 
passed by the House early in the session (Decem- 

1 The Republican state ticket was nominated by the constitu- 
tional convention, at the close of its official work. 

2 General Meade desired to separate the elections, but was dis- 
couraged by General Grant. Cf. correspondence, Report of Secre- 
tary of War, 1 868, p. 84 et seq. 



204 ^^^ PROCESS OF RECONSTRUCTION 

ber 1 8). In the Senate the measure dragged 
somewhat, apparently awaiting the outcome in 
Alabama, where the election was set for Febru- 
ary 4. In that state the Conservative leaders 
abandoned hope of defeating ratification by voting 
against it, and adopted a formal policy of absten- 
tion. An energetic campaign in this sense was suc- 
cessful. The vote stood: for ratification, 70,812; 
against ratification, 1005 ; total, 71,817, over 13,000 
less than half the registration. ^ The white vote 
for the constitution was only 6702, as compared 
with 18,553 in favor of the convention at the earlier 
election. 

The result in Alabama caused a real sensation 
and much alarm among the friends of reconstruc- 
tion. There was no further delay in the Senate 
as to the proposed modifications in the law. The 
bill was pressed with some vigor, in the hope that 
it might become applicable to the election in Ar- 
kansas, which was fixed for March 13. President 
Johnson did not exhibit the same energy that 
characterized Congress ; he neither approved nor 
vetoed the bill, and it only became law, by lapse 
of time, on March 11. At that date all the orders 
for the Arkansas election had long been promul- 
gated and the facilities for communication made 
modifications impracticable. Indeed the district 

1 Meade to Grant, Report of Secretary of War, 1868, p. 97. A 
revision of the registration in view of this election had afforded an 
opportunity for material additions to the lists of qualified voters. 



THE PROCESS OF RECONSTRUCTION 205 

commander, General Gillem, was unaware of the 
existence of the new law until after the election 
had begun,^ and accordingly the provision for vot- 
ing in another precinct than that of registry was 
not enforced. Elections for state officers, how- 
ever, were held simultaneously, by ordinance of 
the convention, the commander tolerating, but as- 
suming no authority over them.^ The result of 
the vote on the constitution was close, the returns 
showing a majority of 13 16 for ratification, and a 
total vote of 54,510 out of Tl.y^i^ registered voters. 
The closeness of the vote gave great importance 
to the somewhat startling fact that in one county 
the vote exceeded the registration by 1195. In- 
vestigation revealed, however, that the registrars 
in this and two other counties acted on unofficial 
information that the act of March 1 1 had become 
law, and received the votes of persons who claimed 
to be registered in counties other than those in 
which they offered to vote. 

In the six other states which voted on their 
constitutions during the spring and summer the 
act of March 1 1 had full application, and in five of 
them the results fulfilled the desires of those who 
enacted it. During April and May the two Caro- 
Hnas, Georgia, Louisiana and Florida ratified their 

1 Report of Secretary of War for 1868, p. 535. 

2 He declined to prohibit registrars from being candidates, on 
the ground that he had nothing to do with state elections. Report 
of Secretary of War, 1S68, p. 548. 



206 THE PROCESS OF RECONSTRUCTION 

constitutions and simultaneously elected Repub- 
lican state officers and congressmen. In Missis- 
sippi the Democrats entered upon a particularly 
desperate campaign to defeat the constitution, and 
though they were distinctly in a minority in the 
registration,^ they carried their point in the voting. 
On June 22 the constitution was rejected by over 
7000 majority, and at the same time the Demo- 
cratic ticket for state offices was successful. 

It is worthy of note that in all the states in 
which the act of March 11 was operative at the 
elections the vote for state officers and congress- 
men was cast, not by the electors qualified under 
the new constitution, but by those registered under 
the Reconstruction Acts.^ This was provided for 
in the act of March 11. The provision had dia- 
metrically opposite effects according as the states 
had or had not inserted severe disfranchising 
clauses in their constitutions. Where such dis- 
franchisement existed, the effect was to install a 
state government by vote of an electorate larger 
than that under which the future government was 
to be carried on. Where there was no disfranchise- 
ment in the constitution, the smaller class of regis- 
tered voters imposed their will at the outset on 

^ Address of Democratic Associations to the People. — Ann. Cyc, 
1868, p. 513. 

2 In some states this end was secured by the requirement that 
the vote for state officers should be on the same ballot as that on 
ratification. Cf. constitution of Arkansas, schedule, sees. 2 and 3. 
Poore, Charters and Constitutions, I, 152. 



THE PROCESS OF RECONSTRUCTION 207 

the larger class of citizens. It probably did not 
escape the notice of the framers of the act that 
the tendency of this provision would be to secure 
for the first official period and for the first Presi- 
dential election Republican control of such states 
as North Carolina and Georgia, where the very 
fact of a liberal suffrage clause created a presump- 
tion that the Democrats would normally rule. 

Texas and Virginia failed to reach the conclusion 
of the process of reconstruction during the second 
session of the Fortieth Congress. In Virginia the 
convention completed the draft of a constitution 
early in April ; but the Congressional appropria- 
tion had been exhausted and the commander pos- 
sessed no funds with which to meet the expenses 
of the election on ratification. The convention set 
the third of June as the day for the election, but 
Congress only made the appropriation after that 
date had passed. Matters were thus at a stand- 
still, as the only authority empowered by law to 
fix another date was the convention, which had 
gone out of existence. The commander referred 
the situation to Congress, but no action was taken.^ 
In Texas the session of the convention was long 
and stormy. By the middle of August the $ 1 00,000 
that had been advanced from the state treasury 
was spent, but the constitution was not completed. 
Any additional advance was refused by the district 

1 Report of Secretary of War, 1S68, p. 320, 



208 THE PROCESS OF RECONSTRUCTION 

commander, on the ground that the *' state of the 
treasury, the rate at which money is coming in, 
and the prospective current wants of the state" 
would not warrant it.^ The convention accord- 
ingly took a recess, to await developments in con- 
nection with the special tax which it had levied. 

As the net result of the first year's full opera- 
tion of the Reconstruction Acts but six states out 
the ten were qualified for restoration to normal 
relations to the national government. In view of 
the manifestations of public opinion in the North 
against both military government and negro suf- 
frage, the Republican leaders were anxious to have 
the whole matter off their hands before the Presi- 
dential election. By resort to methods of ques- 
tionable regularity they were able to increase the 
number of restored states to seven, and on this 
record to go before the people. The triumph in 
the elections relieved the pressure for prompt 
action, and it was only after two additional years 
of military rule that the reconstruction of the re- 
maining three states was complete. 

Ill 

Upon the ratification of constitutions in the 
rebel states the next step contemplated by the 
Reconstruction Acts was the approval of these 
constitutions by Congress and the formal declara- 

1 Ann. Cyc, 1868, p. 730. 



THE PROCESS OF RECONSTRUCTION 



209 



tion by that body that the states concerned were 
entitled to representation. Section five of the act 
of March 23, 1867, was so worded as elaborately 
to safeguard the full discretion of Congress at this 
decisive point. After declaring the duty of the 
President to transmit the ratified constitution to 
Congress, it continued : 

And if it shall, moreover, appear to Congress that the elec- 
tion was one at which all the registered and qualified electors 
in the state had an opportunity to vote freely and without 
restraint, fear or the influence of fraud, and if the Congress 
shall be satisfied that such constitution meets the approval of 
a majority of all the qualified electors in the state, and if the 
said constitution shall be declared by Congress to be in con- 
formity with the provisions of the act to which this is supple- 
mentary, and the other provisions of said act shall have been 
complied with, and the said constitution shall be approved by 
Congress, the state shall be declared entitled to representa- 
tion, and senators and representatives shall be admitted there- 
from as therein provided. 

It is clear that to the framer of this section the 
danger to be particularly guarded against was that 
of overhasty admission. No mere perfunctory 
compliance with the Reconstruction Acts, but a sub- 
stantial conformity to the policy they expressed, was 
to be exacted before the states were to be restored 
to full rights. In the spring of 1868, however, it 
was not haste but delay in restoration that was 
feared by the Republican leaders. The result of 
the vote on ratification in Alabama was a severe 
blow to their projects. It likewise gave much 



210 THE PROCESS OF RECONSTRUCTION 

distress to the successful candidates for state offices 
who, through the failure of ratification, were debarred 
from assuming authority. Complaints and peti- 
tions from the local leaders and consultations with 
the extremists in the House of Representatives 
led to the introduction of a bill by Mr. Stevens, 
March lo, 1868, providing for the admission of 
Alabama to full rights as a state.^ The bill 
merely declared that the constitution was satisfac- 
tory and had been voted for by a large majority 
of the legal voters voting at the election. No 
reference was made to the requirement of the Re- 
construction Acts that a majority of the registered 
voters should participate in the election. No 
importance was assigned, in fact, to any of the 
elaborate conditions embodied in preceding legis- 
lation save one — that ** Congress shall be satisfied 
that such constitution meets the approval of a ma- 
jority of all the qualified electors in the state." 
Such approval v/as not demonstrated by the returns 
of the election ; for the majority of the electors 
had expressed no opinion at all. But the supporters 
of the bill contended that the failure of a majority 
to vote was satisfactorily accounted for by the 
intimidation of negroes by white employers, by 
frauds in registration and irregularities in the elec- 
tion, and particularly by the fact that a heavy 
storm on some of the days during which the elec- 
tion continued prevented many who wished to vote 

1 Cong. Globe, 2d sess., 40th Cong., p. 1790. 



THE PROCESS OF RECONSTRUCTION 211 

from going to the polls.^ These allegations of in- 
timidation and fraud, if not regarded as adequately 
met by counter-allegations by the Democrats, ob- 
viously cast much discredit on the efficiency of the 
military authorities ; ^ and the argument from the 
weather could hardly be taken seriously. It proved 
impossible, therefore, at this time to get a majority 
of the Republicans in the House to throw over- 
board their earlier legislation, and the bill failed.^ 

Meanwhile the constitution of Arkansas had 
been voted upon, with the result stated above.* 
The irregularities connected with the voting there 
were sufficient to prevent General Gillem from 
making any announcement as to whether the rati- 
fication was or was not accomplished. His report 
merely presented the facts and showed that the 
number of votes tainted with irregularity was cou"- 
siderably greater than the majority for ratification. 
Under the existing pressure for speedy restoration 
it was not to be expected that Congress would 
attach much importance to the doubts raised, es- 

1 Globe, 2d sess., 40th Cong., p. 181 8 ^/ seq. 

2 General Meade insisted, after " the most thorough investiga- 
tion," that the constitution was fairly rejected under the law requir- 
ing a majority of the electors to vote. Report of Secretary of War, 
1868, p. 76. 

3 It was transformed by the adoption of a substitute installing 
the Republican state ticket voted for at the election, as a provisional 
government for Alabama pending revision and resubmission of the 
constitution. Globe, 2d sess., 40th Cong., p. 2216. 

* Supra, p. 205. 



212 THE PROCESS OF RECONSTRUCTION 

pecially as, through the refusal of the Democrats 
to recognize the ordinance proclaiming elections for 
state officers, the Republican candidates had been 
returned as elected with but little opposition. A 
bill to restore Arkansas was passed by the House 
of Representatives on the eighth of May. The 
Senate proceeded with some deliberation, owing 
to suspicions that certain manifestations of haste 
were prompted by a desire for two additional 
votes on the pending impeachment trial.^ After 
the conclusion of the trial progress was easy and 
the bill became law, over the President's veto, 
June 22. The provisions of the act included, first, 
a preamble declaring that the people of the state 
had adopted a constitution " which is republican," 
and that the legislature had ratified the proposed 
Fourteenth Amendment ; second, a declaration that 
Arkansas *' is entitled and admitted to representa- 
tion as one of the states of the Union" ; and third, 
a qualification of the foregoing declaration by this 
** fundamental condition " : 

That the constitution of Arkansas shall never be so amended 
or changed as to deprive any citizen or class of citizens of the 
United States of the right to vote who are entitled to vote by 
the constitution herein recognized, except as a punishment 
for such crimes as are now felonies at common law, under 
laws equally applicable to all the inhabitants of said state ; 
provided, that any alteration of said constitution prospective 
in its eifect may be made in regard to the time and place of 
residence of voters. 

1 Cong. Globe, 2d sess., 40th Cong., p. 2437. 



THE PROCESS OF RECONSTRUCTION 213 

By virtue of this act Arkansas became at once 
a member of the Union in full standing. Her 
senators and representatives qualified on the fol- 
lowing day,^ and reconstruction was complete in 
one of the ten states. That the friends of negro 
suffrage felt little confidence in the permanency of 
their work, needs no stronger evidence than the 
drastic and unprecedented condition under which 
the first of the errant states was restored to the 
Union. 

Only three days after the passage of the Ar- 
kansas bill Congress acted finally upon the other 
six states which had voted upon their constitu- 
tions. The bill for this purpose was reported 
from the House committee on reconstruction early 
in May. It was quite characteristic of that com- 
mittee and its leader, Mr. Stevens, that with the 
other states to which the bill referred should be 
included Alabama, whose restoration the House 
had refused to sanction only six weeks earlier. 
Nothing whatever had occurred in the state itself 
to modify the reasoning on which the former ac- 
tion had been taken ; but the parliamentary device 
of winning reluctant support for an obnoxious 
proposition by coupling it with a popular one was 
too well-tried and efficient to be omitted on an 
occasion like that at hand. The desired end was 
attained. After much debate, in which the cir- 
cumstances of the elections in Alabama were 

1 McPherson, Reconstruction, pp. 347, 348. 



214 THE PROCESS OF RECONSTRUCTION 

threshed over again and again, the argument pre- 
vailed that that state should come in at the same 
time with the rest, and that the allegation of 
breach of faith ought not to carry much weight 
when only rebels and traitors were aggrieved. In 
both House and Senate the motion to strike out 
Alabama from the bill was lost. Florida, also, 
where the vote on ratification was later, was ulti- 
mately included in the bill, and it became law on 
June 25. The declaration of restoration and the 
fundamental condition were identical with the 
terms of the Arkansas bill. In the preamble, 
however, a difference was necessary : it could 
not be declared that the legislatures had ratified 
the Fourteenth Amendment; and the inclusion 
of Alabama made impossible the simple affir- 
mation that republican constitutions had been 
adopted.^ Moreover, instead of going into effect 
at once, the restoration was only to ensue upon 
the ratification of the Fourteenth Amendment by 
the legislatures ; and in the case of Georgia 
upon the approval by its legislature of an addi- 
tional fundamental condition, namely, that specified 



^ They were declared to have been adopted " by large majorities 
of the votes cast at the elections held for the ratification or rejection 
of the same." This wording reflects the rather ridiculous tendency of 
the extremists to ignore the notorious in the Alabama case, and to 
declaim about the huge majority in that state for the constitution, 
as if the size of the majority really expressed the triumph of those 
who voted rather than that of those who abstained. 



THE PROCESS OF RECONSTRUCTION 21$ 

clauses of her new constitution, abolishing certain 
debts, should be null and void. The bill provided 
further that meetings of the legislatures should be 
promptly held to act upon the amendment. 

By this legislation Congress was presumed to 
have completed its part in the reconstruction of 
six states, namely, North Carolina, South Carolina, 
Georgia, Florida, Alabama and Louisiana. It will 
be observed that the action of the national legis- 
lature did not correspond exactly with the require- 
ments of the first Reconstruction Act. In this 
it was declared that admission to representation 
should only take place after the Fourteenth 
Amendment " shall have become a part of the 
constitution of the United States." ^ This require- 
ment was dropped in the act of March 23, 1867, 
for the reason that the lawyers were unwilling or 
unable to agree as to whether the ratifications of 
the reconstructed states were necessary to the 
validity of that amendment. All agreed that 
those states should be obliged to ratify it, as a 
visible pledge and token of their reconstruction ; 
but many held that the amendment became opera- 
tive when approved by three-fourths of the states 
exclusive of those under military government. 
This vexatious point became of much importance 
at the conclusion of the process of reconstruc- 
tion, through the bearing of that clause of the 
amendment which disqualified certain persons for 

1 Act of March 2, 1867, sec. f. 



2l6 THE PROCESS OF RECONSTRUCTION 

state oflfice. The act restoring the six states con- 
tained a clause distinctly providing that no one 
disqualified by the proposed amendment should 
hold office under the states concerned. The feel- 
ing which dictated this provision is made clear in 
the incidents connected with the transition from 
the military to the representative regime in the 
various states. 

IV 

When once the elections had been held and a 
body of Republican claimants for the state offices 
had thereby been created, a readjustment of rela- 
tions took place among the various elements of 
authority in each state. In their impatience to 
assume power the Republicans tended to regard 
the military as hostile to them, and to be some- 
what captious in their judgments upon the con- 
duct of the commanders. On the other hand the 
Democrats, who still had some shadow of official 
power through the lingering remnants of the 
Johnson governments, were disposed to regard 
the prolongation of the military regime with much 
complacency. The commanders, for their part, 
might well have conceived that the spirit of the 
Reconstruction Acts justified the concession of 
authority to the chosen representatives of the new 
electors, but the letter of the law was explicit, that 
military power should be supreme until an act of 
Congress should declare the state entitled to rep- 



THE PROCESS OF RECONSTRUCTION 21/ 

resentation. In Alabama and Arkansas, where 
there was a long interval between the elections 
and action by Congress, the situation was particu- 
larly trying. The Republican members-elect of 
the respective legislatures assembled^ and went 
through the form of organization. As their only 
claim to official character rested upon the new 
constitutions, which the commanders refused to 
consider as ratified, it was of course impossible 
for the commanders to recognize these assemblies. 
Under such circumstances it was not to be ex- 
pected that the pretenders would receive much 
respect from the mass of the white citizens. In 
fact the existence of these pseudo-governments 
introduced a new element into the already serious 
problem of maintaining peace and order in the 
states. Ultimately the action of Congress vali- 
dated the action of the Arkansas legislature in 
ratifying the Fourteenth Amendment ; ^ but as to 
Alabama, all the proceedings of its legislature-elect 
antecedent to the act of June 25 were ignored. 

The difficulties due to the cause just considered 
were of less importance in the other states, though 
they made themselves felt. In Louisiana, for in- 
stance, the eagerness of the new officials to begin 

1 In Alabama, they met in a newspaper office; in Arkansas, they 
broke into the legislative halls of the state capital. Ann. Cyc, 1868, 
pp. 16, 38. 

•- The preamble of the admitting act assumed that the amend- 
ment had been ratified. 



2l8 THE PROCESS OF RECONSTRUCTION 

their duties had to be sharply repressed by Gen- 
eral Buchanan. But very troublesome to all the 
commanders were the questions that arose as to 
the qualifications and the method of installation of 
officers who were to assume power under the 
new constitutions. The situation was a very puz- 
zling one. As prerequisite to restoration the 
legislature of each state must ratify the Four- 
teenth Amendment. The organization of the 
legislature must accord with the new constitution, 
which in some states required the participation of 
governor and lieutenant-governor ; hence these 
officials must qualify. But the new constitution 
could not be considered as in force until after the 
action on the Fourteenth Amendment. Until such 
action was complete, the Reconstruction Acts re- 
tained their full authority, and the military com- 
mander was paramount ruler. 

The difficulty here indicated was overcome 
through that provision of the act of March 2, 1867, 
which declared that until the admission of represen- 
tatives to Congress, any civil government existing 
in the rebel states should " be deemed provisional 
only." On the basis of this clause the policy was 
devised of regarding the legislature-elect and the 
executive officials necessary to its action as pro- 
visional in character, and as the creatures, so to 
speak, of the military commanders. By the orders 
of the generals the persons hitherto acting as gov- 
ernors in the two Carolinas and in Louisiana were 



THE PROCESS OF RECONSTRUCTION 219 

removed, and the governors-elect were appointed in 
their places. The acts necessary to the transition 
from the military to the civil regime were thus 
performed by the holders of authority under both, 
and conflict was avoided. 

But the more fundamental problem as to quali- 
fications for office at once assumed formidable 
dimensions. Three conflicting factors entered into 
the situation — the state constitutions, the proposed 
Fourteenth Amendment and the Reconstruction 
Acts. The state constitutions required of legisla- 
tors and officers various qualifications and oaths, 
some more rigorous than what was required by the 
Fourteenth Amendment. This latter disqualified 
for office in the states those who, after taking oath 
to support the constitution, had gone into rebellion. 
Normally, then, the new state officers and legisla- 
tors would conform to the qualifications prescribed 
by the state constitutions, provided these excluded 
such persons as were excluded by the Fourteenth 
Amendment. But as we have seen, the officers 
and legislators installed before the full restora- 
tion had to be regarded as "provisional"; and 
section nine of the act of July 19, 1867, required 
that '* all persons hereafter elected or appointed to 
office in said military districts" should take the 
iron-clad oath.^ Relatively few of the officers- 
elect could honestly take this oath,^ and it early 

^ Ante, p. 184, note. 

2 In practice it seems to have been assumed that every negro 



220 THE PROCESS OF RECONSTRUCTION 

became a serious question as to whether it or the 
oath prescribed by the state constitutions was 
to be exacted from those who took part in the 
proceedings 'preliminary to full restoration. The 
military commanders, after referring the matter 
to headquarters, proceeded on the more moderate 
theory that the officials elected under the new 
constitutions were not officials of " provisional gov- 
ernments " in the meaning of the Reconstruction 
Acts,^ and therefore need not take the " iron-clad 
oath," This was probably an equitable interpre- 
tation of the law, but it was quite inconsistent 
with the theory on which was based the action of 
the legislature in transacting business before the 
restoration of the state.- The interpretation was 
rejected by the Republican officials in Louisiana, 
who, in spite of the orders of the commander, at- 
tempted to exclude the Democratic members of 
the legislature by requiring the test oath. A seri- 
ous disturbance became imminent before the re- 
calcitrant majority finally gave way.^ 

Another difficult question, related to the fore- 
going, was as to the authority of the commanders 
to pass upon the qualifications of the individual 

could take this oath, though such an assumption was irreconcilable 
with notorious facts as to the conduct and sympathies of the blacks 
during hostilities. 

1 Cf. House Ex. Doc, No. 276, 2d sess., 40th Cong. 

* General Meade distinguished between officers and legislators, and 
thought the latter might be required to take the test oath. Ibid. 

^ Ann. Cyc, 1868, p. 434. 



THE PROCESS OF RECONSTRUCTION 221 

members of a legislature when that body assem- 
bled. It was generally conceded that by force of 
either the Fourteenth Amendment or the provi- 
sions of the admission act of June 25, 1868, no 
person disqualified by the amendment was eligible 
to the state legislature. But much depended upon 
the ground chosen as the basis of ineligibility. If 
disqualification was based upon the amendment, 
the capacity of members must be determined by 
the normal methods of constitutional and parlia- 
mentary procedure ; if upon the act of Congress, 
the military commander must determine the mat- 
ter and, in pursuance of his duty to enforce the 
law, must, upon the assembling of the legislature, 
" purge " that body of disqualified persons. In 
several of the states, where the creation or increase 
of a Republican majority was deemed important, 
the newly elected state officers were eager for the 
use of the latter method. But grave doubts as to 
the policy of such a proceeding appeared on the 
surface. To set up a major-general as final judge 
of membership in a representative assembly whose 
electorate had been so carefully constructed and so 
elaborately protected in its action, would reflect seri- 
ously on the fundamental principles of reconstruc- 
tion. The commanders themselves had no stomach 
for so invidious a duty. Accordingly, with the ap- 
proval of leading members of the majority in Con- 
gress,! they confined themselves to pointing out the 

1 Cf. Report of Secretary of War, 1868, vol. i, p. 78. 



222 THE PROCESS OF RECONSTRUCTION 

test of eligibility to the legislatures and calling upon 
the respective houses to apply this test in exercis- 
ing their constitutional control over the elections, 
qualifications and returns of their members. This 
solution, again, was hardly to be reconciled with 
any clear-cut theory of reconstruction. It was the 
outcome of expediency rather than logic. In the 
case of one state, Georgia, logic asserted itself later 
in a somewhat startling manner. 

For the six states affected by the act of June 25, 
the month of July, 1868, brought the formal con- 
clusion of the process of reconstruction. Legisla- 
tures met and ratified the Fourteenth Amendment ; 
recently chosen governors and other officers were 
installed with the usual ceremonies ; and on receipt 
of official notice that the amendment had been 
ratified in each state, the respective district com- 
manders issued orders declaring that military gov- 
ernment under the Reconstruction Acts had ceased. 
Legislative and administrative routine was at once 
assumed by the regular organs of the states, and the 
cases pending in the military tribunals were turned 
over to the ordinary courts. At the same time the 
two houses of Congress fulfilled their duty by admit- 
ting to seats the representatives and senators from 
the reconstructed states. Before the close of the 
session all the six states had members at work in 
the House, and all but Georgia in the Senate. 

The state last named had, as we have seen, 
required exceptional treatment in the restoring 



THE PROCESS OF RECONSTRUCTION 223 

act of June 25. Circumstances conspired to con- 
tinue the special character of her reconstruction. 
Of all the states she alone had returned a Conserv- 
ative or Democratic majority^ in her legislature; 
but the governor-elect, Bullock, was a Republican. 
In the prevailing condition of political feeling, 
friction between executive and legislative depart- 
ments was inevitable. It made its appearance 
during the transition from military to regular gov- 
ernment. The governor-elect had and expressed 
very strong convictions on the questions noticed 
above as to the qualifications of members of the 
legislature that performed the acts preliminary to 
restoration. He believed that the iron-clad oath 
was the legal test of eligibility, and he strongly 
urged General Meade to exclude at least certain 
members whom the governor considered ineligible 
under the Fourteenth Amendment. ^ As committees 
of the houses reported that all the members were 
eligible, and as Bullock's aspirations for a United 
States senatorship seemed to influence his opin- 
ions,2 the general declined to act on the governor's 
suggestion. In consequence of this initial incident 
relations between the governor and the majority 
in the legislature were greatly strained after mili- 

1 The Senate was evenly divided between the parties, 22 mem- 
bers each; the lower house stood Democrats 102, Republicans 73. 
Ann. Cyc, 1868, p. 312. 

2 The correspondence is given in Sen, Ex. Doc, No. 13, 2d sess. 
41st Cong., p. 69 et seq. 

3 Meade to Grant. Doc. last cited, p. 50. 



224 ^^^ PROCESS OF RECONSTRUCTION 

tary rule was withdrawn. United States senators 
were elected July 29, after Congress had ceased 
work for the summer, but Bullock was not chosen. 
Later in the session the legislature recurred to 
the question of eligibility of members, but from a 
new point of view. Taking advantage of a loop- 
hole left by the framers of the constitution, the 
majority decided that negroes were ineligible to 
any office in the state, and forthwith unseated all 
the blacks in both houses, twenty-seven in number. 
This proceeding was doubtless gratifying to the 
hot partisan spirit of the day, but it was not judi- 
cious. It gave to the governor a weapon that he 
was prompt to use. The Democratic leaders in 
the state had doubtless supposed that their immu- 
nity from further action by Congress was complete. 
But when the credentials of the Georgia senators 
were presented, at the meeting of Congress in 
December, objection was promptly made to their 
acceptance.^ Radical senators declared that the 
act of the legislature in expelling the negro mem- 
bers was good ground for refusing to recognize 
the state as restored to normal relations. Gov- 
ernor Bullock submitted a paper reciting his views 
as to the qualifications of members of the legis- 
lature and assuming that his own tenure, as well 
as that of every other member of the state gov- 
ernment, was still only provisional. Though mod- 
erate senators protested against delay, the desired 

1 Cong. Globe, 3d sess., 40th Cong., p. 2 et seq. 



THE PROCESS OF RECONSTRUCTION 225 

impression was made by the radicals and the 
formal act that would have made incontestable 
the full restoration of the state was prevented. 
The senators-elect were not permitted to take their 
seats, and thus a slight, but as circumstances 
proved a sufficient, foundation was secured for the 
theory that Georgia was still in the class of states 
in which the process of reconstruction was in- 
complete. 



The point now reached marks an epoch in the 
process of reconstruction. A variety of events 
combined to change the conditions under which 
the process was to be completed in the four states 
that were still unrestored. In the first place, the 
Fourteenth Amendment had become formally a 
part of the constitution. On July 20, 1868, Secre- 
tary Seward, after receiving notice of ratification 
by the reconstructed legislatures,^ issued his procla- 
mation announcing that the amendment was in 
force. The secretary's document was a unique 
production, ingeniously devised to avoid recog- 
nition of the reconstructed legislatures as lawful,^ 
and expressly reserving judgment as to the validity 

1 Except that of Georgia, which ratified later. 

2 It was declared that the article had been ratified by the legis- 
latures of twenty-three specified states, and in six states by " newly 
constituted and newly established bodies avowing themselves to be, 
and acting as, the legislatures." 

Q 



226 THE PROCESS OF RECONSTRUCTION 

of rescinding acts passed after ratification in New 
Jersey and Ohio ; but Congress immediately by 
concurrent resolution made short work of Mr. 
Seward's scruples and declared the new article part 
of the constitution.^ In the second place, the 
issue of reconstruction had again been fought out 
in a general election, and the Republicans had de- 
cisively won. By the voting of November, 1868, 
the future control of the executive as well as the 
legislative department at Washington was assured 
to the friends of Congress' policy, and it was a 
source of much satisfaction that of Grant's 214 
electoral votes, forty-one came from states lately 
in rebellion.^ Harmonious relations and an iden- 
tical policy on the part of President and Congress 
must necessarily modify the conduct of recon- 
struction after March 4, 1869; but probably quite 
as great a modifying influence was exerted by the 
fact that two of the reconstructed states, Louisi- 
ana and Georgia, chose Democratic electors in 
November. 

A third element of novelty in the general situa- 
tion was a change of attitude by the Republican 
Party as to negro suffrage. Certain manifestations 
of Northern sentiment on this topic had given 
much concern to the Republican leaders in the 
Presidential campaign. Four important states, 

1 Mcpherson, History of the Reconstruction, p. 380. 

2 Virginia, Mississippi and Texas of course did not take part in 
the election. 



THE PROCESS OF RECONSTRUCTION 22^ 

Ohio, Michigan, Minnesota and Kansas, had re- 
fused to extend the right of voting to the blacks, 
while manifesting entire sympathy with the Con- 
gressional policy of reconstruction. It was the 
condition of feeling thus indicated that found ex- 
pression in the national platform : 

The guarantee by Congress of equal suffrage to all loyal 
men at the South was demanded by every consideration of 
public safety, of gratitude and of justice, and must be main- 
tained ; while the question of suffrage in all the loyal states 
properly belongs to the people of these states.^ 

But the flush of victory actually achieved quickly 
banished from further consideration the policy 
foreshadowed by this declaration. That the per- 
manency of what reconstruction had effected in 
the South was insecure, was made very obvious 
by the fact of Democratic victory in Georgia and 
Louisiana. The " fundamental conditions " which 
afforded the only basis for Congressional mainte- 
nance of negro suffrage in the restored states were 
regarded by a large majority of constitutional law- 
yers in both parties as of doubtful validity. Under 
the circumstances a further amendment to the 
constitution was the only resort that could be 
depended upon for the end desired. Hence the 
Fifteenth Amendment was, after a long and ar- 
dent discussion of the whole field of political phi- 

1 Ann. Cyc, 1868, p. 744. 



1 



228 THE PROCESS OF RECONSTRUCTION 

losophy, sent to the state legislatures by resolution 
finally passed February 26, 1869. The pendency 
of this amendment had, as will soon appear, a 
most Important influence on the conclusion of 
reconstruction in the last four states. 

Finally, the actual working of the reconstructed 
governments during the first few months of their 
existence had suggested, if it had not clearly 
revealed, the inability of those governments to 
stand alone. The withdrawal of military govern- 
ment had been followed in most of the states 
by disturbances which, whatever their source and 
magnitude, — and both were the subject of vehe- 
ment partisan dispute, — led to anxious appeals by 
the state authorities for military aid from the 
United States.^ It was in connection with the 
elections that the disorders assumed the most 
serious character. The Ku Klux Klan, conspic- 
uous for some time in Tennessee, had begun to 
manifest its terrorizing features in various other 
states. Louisiana was believed to have been car- 
ried by the Democrats in the Presidential election 
wholly through fraud and violence.^ All these 
facts conspired to intensify the zeal of the Repub- 
licans for stringent methods in completing recon- 
struction. The obvious danger to party supremacy 
where a priori such supremacy was to be expected 
revived the flagging interest in the process. In- 

1 Report of Secretary of War, 1868, p. xviii et seq. 

2 Blaine, Twenty Years of Congress, II, 409. 



THE PROCESS OF RECONSTRUCTION 



229 



Stead of the mere eagerness to get rid of the whole 
subject, which had been apparent in 1868, there 
became conspicuous in the following year a reso- 
lute purpose to make every possible point for 
effective and permanent Republican control in the 
remaining states. 

The final session of the Fortieth Congress, in 
the winter of 1868-69, produced no legislation 
designed to hasten the admission of the states 
still unrestored. On the other hand the long- 
standing demand of the Radicals for control of the 
state offices was gratified by an act requiring the 
commanders in Virginia, Mississippi and Texas to 
remove all incumbents who could not take the 
iron-clad oath and to replace them by persons who 
could take it.^ Moreover, the process of remov- 
ing the disabilities imposed by the Fourteenth 
Amendment began to appear prominently in the 
work of Congress, and the methods by which the 
grant of relief was carried on^ left no doubt as 
to the tendency of the process to aid the Radi- 
cals in both reconstructed and unreconstructed 
states. 

Meanwhile the problem as to the next steps to 
be taken in the three states mentioned above had 
been the subject of intense controversy both within 

1 Became law without the President's approval, Feb, 6, 1869. 
Cong. Globe, 3d sess., 40th Cong., Appendix, p. 327. 

2 Cf. Globe, 3d sess., 40th Cong., p. 1712 et stq., esp. remarks 
of Tipton and Howard; also remarks of Beck, p. 1888. 



230 THE PROCESS OF RECONSTRUCTION 

the states themselves and in the room of the com- 
mittee on reconstruction at the Capitol. In Missis- 
sippi and in Virginia the stringent disfranchising 
and test-oath clauses of the constitutions had 
caused a distinct split of the Republican state 
organizations. The radical wing in Mississippi 
demanded the admission of the state under the 
constitution as it stood, on the ground that its 
rejection in the previous election had been effected 
by fraud and violence. The conservative wing, 
on the other hand, were ready for resubmission 
of the constitution to the people, with a separate 
vote on the obnoxious disfranchising clauses, to 
which the previous failure of ratification seemed 
to be chiefly due. In Virginia the Republicans 
divided on similar lines ; and in both states the 
Democrats abandoned a distinct policy and coa- 
lesced with the conservative Republicans in the 
movement for separate submission of the disa- 
bling clauses. The Texas convention reassembled 
and completed a constitution during the winter of 
1868-69; but here also the Republicans were split 
into factions, and political conditions, like social 
conditions, in the state were chaotic.^ Under all 
the circumstances the task of the military com- 
manders in maintaining some semblance of govern- 
mental authority became increasingly burdensome, 
and their difficulties were enhanced by the require- 

1 Cf. Ann. Cyc, 1869, p. 671 et seq. Also Report of Secretary 
of War, 1868, p. 704. 



THE PROCESS OF RECONSTRUCTION 23 1 

ment of a " clean sweep " in the offices, which was 
imposed by the action of Congress in February. ^ 

It was not until after the inauguration of the 
new administration that definitive action was taken 
to put an end to the existing situation. By act of 
April 10, 1869, Congress authorized the submission 
of the constitutions in the three states to popular 
vote. The change wrought by the installation of 
President Grant was manifested in the fact that 
the administration of the law was entrusted, not 
to the district commanders, as in previous acts, 
but to the President; and even more in the pro- 
vision by which Congress evaded entirely the 
troublesome question as to a separate vote on 
test oath and disfranchisement, by leaving the 
matter to the President's discretion.^ The pas- 
sage of the act had indeed been due to a recom- 
mendation of the President in a special message 
of April 7,^ in which he had indicated both his 
desire to promote the admission of Virginia and 
Mississippi, and his conviction that a separate vote 
on the obnoxious clauses should be permitted. By 
far the most striking innovation embodied in the 
act, however, was the requirement that, as a con- 
dition precedent to restoration, each state should 

1 In Virginia, 5176 offices were vacated under this law, of which 
2814 were still vacant on October i. Report of Secretary of War, 
1869, p. Ill; cf. for Texas, p. 145. 

'^ The act is in McPherson, Reconstruction, p. 408. 

3 Ibid., p. 417. 



232 THE PROCESS OF RECONSTRUCTION 

ratify the Fifteenth Amendment. The fairness 
and justice of imposing a new condition at this 
late stage in reconstruction — a condition that 
seven of the states had escaped — were seriously 
doubted by many Republicans and were strenu- 
ously denied by the Democrats ; ^ but the contest 
over the amendment in Northern legislatures was 
looming fierce and doubtful,^ and the opportunity 
to insure three states in the affirmative could not 
be lost. It was quite probable that these states 
would have ratified the amendment voluntarily, 
and the chief significance of the Congressional 
action lay in the triumph of a radical program. 
The strength secured to radical sentiment by the 
admission of the states already reconstructed is 
illustrated by the fact that in the Senate eight of 
the members from those states voted for the new 
condition and but one against it. 

Under the authority of the act just considered 
elections were held in Virginia July 6, and in Mis- 
sissippi and Texas November 30. In the first two 
states the President exercised the discretion con- 
ferred upon him by submitting to separate votes 
the disabling clauses. The results justified the 

1 Cf. debate in Senate, Globe, ist sess., 41st Cong., p. 654 et seq. 

2 In Indiana the Democratic members of the legislature, to pre- 
vent action by the Republican majority, resigned in a body and de- 
stroyed the quorum. Ann. Cyc, 1869, p. 356 et seq. The use of such 
methods against the amendment was held to justify extraordinary 
procedure in its favor. Cf. Morton in Globe, ist sess., 41st Cong., 
p. 654. 



THE PROCESS OF RECONSTRUCTION 233 

pledges made by the Conservatives; for in both 
states, while the rest of the constitutions were 
ratified almost without opposition, the obnoxious 
clauses were defeated by decisive majorities. The 
Texas convention had embodied no disfranchise- 
ment in the constitution, and the instrument as a 
whole was ratified. Elections were held in all 
three states for state officers and congressmen, 
and in all three the contest was between Radicals 
and Conservatives, the Democrats abandoning any 
distinctive organization. The result was victory 
for the Conservatives in Virginia and for the 
Radicals in the other two states. On the ques- 
tion of eligibility to the legislature in Virginia, 
General Canby, then commanding in the state, 
excited some commotion by arguing away the 
precedents established in the states earlier ad- 
mitted^ and ruling that the iron-clad oath must 
be taken by members before taking their seats.^ 
President Grant, however, clung to the opinion 
which he had formed as General of the Army, 
that only the oath required by the state constitu- 
tion was necessary, and this view was fortified 
by Attorney-General Hoar in a formal opinion. 
Though the act of July 19, 1867, forbade district 
commanders to be bound in their action by " any 
opinion of any civil officer of the United States," 

1 Ante, p. 220. 

2 All the documents connected with this incident are in Sen. Ex. 
Doc, No. 13, 2d sess., 41st Cong. 



234 ^-^^ PROCESS OF RECONSTRUCTION- 

the " spirit of the Reconstruction Acts " very 
clearly justified the interpretation of this clause 
as meaning President Johnson's attorney-general 
and not President Grant's. Accordingly the iron- 
clad oath was not required of the members of the 
legislature. The commanding general did, how- 
ever, look very carefully after the qualification of 
members of the legislature under the Fourteenth 
Amendment, and excluded from their seats several 
persons whom he regarded as ineligible. 

When Congress reassembled in December, 1869, 
it was informed by the President, in his annual 
message, that Virginia had conformed to all the 
requirements of the Reconstruction Acts and that 
her legislature had ''abstained from all doubtful 
authority " ; the prompt admission of her senators 
and representatives was therefore recommended. 
The President had committed himself definitely 
from the beginning of his term to the support of 
the Conservatives in Virginia, and their triumph 
in the election had pleased him. In Congress, 
however, a strong element of the Republicans 
sympathized with the Radicals, and regarded the 
result of the election as expressing the failure of 
the whole reconstruction. A vigorous opposition 
was made, therefore, to immediate action on Vir- 
ginia. It was urged that the abuses of power 
which were alleged against the Conservatives in 
Georgia would be repeated by the Virginia Con- 
servatives. The pressure of the administration, 



THE PROCESS OF RECONSTRUCTION 



235 



however, meant much at this time : where John- 
son's urging admission would have insured the 
exclusion of the state, Grant's had a different 
result. The bill for the restoration of Virginia 
became law on the 26th of January, 1870. It 
bore the impress of the opposition, however, in 
the form of conditions, both precedent and subse- 
quent, that considerably exceeded in severity those 
imposed upon the states earlier restored. It was 
first required that every member of the legislature 
should, as a condition of taking his seat, subscribe 
to an oath to the effect either that he was not dis- 
qualified by the Fourteenth Amendment, or that 
his disability had been removed by Congress. 
Then, as fundamental conditions upon the state's 
admission, it was prescribed first, as in case of the 
former states, that the constitution should never 
be so amended as to deprive of the suffrage any 
persons on whom it was bestowed therein ; second, 
that the state should never "deprive any citizen 
of the United States, on account of his race, color 
or previous condition of servitude, of the right to 
hold office," or "upon any such ground" impose 
discriminating qualifications for office ; and third, 
that the constitution should never be so amended 
as to "deprive any citizen or class of citizens of 
the United States of the school rights and privi- 
leges secured by the constitution of said state." 
The second of these provisions very obviously bore 
upon such proceedings as those of the Georgia 



236 THE PROCESS OF RECONSTRUCTION 

legislature in ousting its negro members ; the last 
condition was suggested by an issue that had 
played a large part in the Virginia campaign, and 
in connection with which the triumph of the Con- 
servatives was alleged to forebode the denial of 
free education to the blacks. Both these new con- 
ditions were antagonized by many Republicans as 
unconstitutional and as involving breach of the 
faith pledged in the act laying down the terms of 
restoration. But the arguments once more pre- 
vailed that the guarantee of a republican form of 
government involved Congressional control of both 
qualifications for office and general education ; and 
that the breaking of faith, even if it were fairly 
chargeable, need not signify much with a people 
who had put rebels in power. 

On the day after the approval by the President 
of the act just described, orders were issued by 
General Canby terminating military government 
in Virginia and the reconstruction of the state was 
formally complete. Mississippi and Texas mean- 
while had conformed to the transitional require- 
ments, following closely the lines laid down in 
Virginia, and Congress enacted their restoration in 
terms identical with those of the Virginia act. 
Some effort was made to relax the severity of the 
fundamental conditions, on the ground that the 
victory of the Radicals in the two states removed 
all fear of improper proceedings, and that no issue 
existed as to school privileges. The extremists in 



THE PROCESS OF RECONSTRUCTION 237 

Congress persisted, however, in retaining the Vir- 
ginia form, and in some cases made no conceal- 
ment of a conscious and deliberate purpose to fix 
thus an interpretation upon the national constitu- 
tion that should vastly enlarge the powers of Con- 
gress.^ The Mississippi bill became law on the 
23d of February, and the Texas bill on the 30th of 
March. Military rule was at once withdrawn and 
the states assumed their normal condition. 



VI 

At the beginning of April, 1870, of the ten 
commonwealths whose reconstruction had been 
undertaken by Congress Georgia alone was un- 
restored to the full enjoyment of state autonomy. 
The situation of the state in December, 1868, has 
already been described.^ She had been by act of 
June 25 declared entitled to representation in 
Congress upon the performance of certain acts by 
her legislature ; these acts had been performed, 
military government had been withdrawn from the 
state, and her representatives had been admitted 
to the lower house in Congress. On this condi- 
tion of the facts the legal status of Georgia as a 
state of the Union appeared pretty well established. 

1 Cf. debates on Virginia and Mississippi bills, passim, in Globe, 
2d sess., 41st Cong., esp. remarks of Morton, Howard, Drake and 
Sumner in the Senate. 

'^ Ante, p. 224 et seq. 



238 THE PROCESS OF RECONSTRUCTION 

The Senate, however, had refused to admit her 
members to their seats. During the winter the 
question of her status required an answer in con- 
nection with the count of the electoral votes for 
President and Vice-President. Georgia had chosen 
Democratic electors, but the result of the election 
was not sufficiently close to be affected by their 
nine votes. Republican opinion in Congress as 
to the treatment of Georgia was as yet too inde- 
terminate to warrant a solution of the whole prob- 
lem at this time.^ Accordingly the issue was 
avoided by the device of the " alternative count," 
the president of the Senate declaring the number 
of votes both including and excluding Georgia, 
and announcing the election of Grant and Colfax in 
either case.^ But there was abundant evidence 
presented in the course of this session that the 
ultimate settlement of the state's condition would 
be on radical lines. 

After the installation of the new administration 
the influences which have been described as affect- 
ing reconstruction worked with especial force in 
respect to Georgia. In the organization of the 
new House of Representatives a technical irregu- 
larity that was discovered in the credentials of her 

1 Remarks of Edmunds, Globe, 3d sess., 40th Cong., p. 976. 

2 It illustrates the anomaly of the general situation that in the 
House the names of the Georgia members appear in the votes 
bearing on the status of the state. Most of these members were 
Republicans, and voted against counting Georgia's electoral vote. 



THE PROCESS OF RECONSTRUCTION 239 

members afforded an opportunity for refusing to seat 
them.i The participation of members from the state 
in the determination of the state's right to have 
members was thus obviated. Soon afterward the 
radical plan for dealing with Georgia was revealed 
in a bill introduced by General Butler, the worthy 
successor of Thaddeus Stevens at the head of the 
committee on reconstruction. In the preamble to 
this bill the basis for Congressional action as to 
the state was laid in three leading assertions : first, 
that the legislature had violated the Fourteenth 
Amendment by failing to exclude persons disquali- 
fied thereunder; second, that the majority of the 
legislature had violated the constitution of the 
United States, the constitution of Georgia and the 
fundamental principles of the Reconstruction Acts 
by expelling the negro members ; and third, that the 
local authorities of the state were unwilling or un- 
able to protect loyal citizens from violence.^ The 
bill then provided that the governor should re-con- 
vene the members of the legislature as originally 
elected, purge it of all who could not or would 
not subscribe to a designated oath, based on the 
Fourteenth Amendment, and retain the negroes ; 
and that the military forces of the United States 
should be subject to the governor's call for aid in 
the administration of government and the protec- 
tion of life and property. 

1 Globe, 1st sess., 41st Cong., p. 16 ^/ seq. 
^ Ibid., p. 591. 



240 THE PROCESS OF RECONSTRUCTION 

Republican sentiment, practically harmonious as 
to the necessity of some punishment of the Geor- 
gia Conservatives, was seriously divided as to the 
basis for the desired action by Congress. The rec- 
ord of acts, both legislative and executive, through 
which the national government had acknowledged 
to Georgia the full character and rights of a state 
seemed to many complete and unassailable ; and 
under such circumstances the assumption by Con- 
gress of control over the organization of the legis- 
lature or over the administration of justice was 
wholly without constitutional warrant. On the 
other hand stood the fact that the Senate had not 
admitted the Georgians to their seats, and that, 
therefore, by the merest shade the restoration of 
the state might be regarded as not complete. 
Until every least step in the process laid down in 
the Reconstruction Acts had been taken, "any 
civil governments which may exist therein [in the 
several states] shall be deemed provisional only, 
and in all respects subject to the paramount au- 
thority of the United States." ^ Strictly consid- 
ered, thus, the government of Georgia might still 
be held provisional. But so fine-spun a theory 
was not deemed necessary by all the Republicans. 
It was argued by some that the state of Georgia, 
whether the existing authorities were provisional 
or permanent, had not a republican form of govern- 
ment. This was evident not only in the exclusion 

1 Act of March 2, 1867, sec. 6. 



THE PROCESS OF RECONSTRUCTION 



241 



of a large part of the population from the freeman's 
right to hold office, but also in the substantial de- 
nial of protection of life and property to an equally- 
large class. It was the constitutional duty of Con- 
gress to see that a republican form of government 
existed in every state, and in fulfillment of that 
duty the assumption of control in Georgia was 
justifiable. But even more conclusive, if possible, 
was the right to enforce the Fourteenth Amend- 
ment in Georgia. There could be no pretense, it 
was held, that the disqualifications for office-hold- 
ing imposed by that amendment were respected 
by the legislature, or that the equal protection of 
the laws was given to blacks as the amendment 
required. It was the duty of Congress to enforce 
the provisions of this amendment, and the purging 
of the legislature and the maintenance of order 
by the military power were necessary and proper 
means for the performance of this duty. 

The House of Representatives did not act finally 
on General Butler's bill in the spring of 1869. 
Before the next meeting of Congress the supreme 
court of Georgia, on a test case brought before it, 
decided that under the constitution and laws of 
the state negroes had the right to hold office.^ 
There had been a general understanding that the 
majority in the legislature would be guided by the 
opinion of the court, though there was of course 
no obligation upon them in this respect. In view 

1 The opinions are given in McPherson, Reconstruction, p. 466. 

R 



242 THE PROCESS OF RECONSTRUCTION 

of what was threatened when Congress should 
meet, the Conservatives petitioned Governor Bul- 
lock to summon a special session of the legislature, 
and give it an opportunity to re-seat the colored 
members. The governor, however, refused. Mean- 
while the President had caused General Terry to 
investigate thoroughly the stories of extensive out- 
rages upon freedmen and white Republicans in the 
state. The general in his report ^ represented the 
conditions throughout the state to be most deplor- 
able, chiefly through the activity of the Ku Klux 
Klans, and gave his opinion that the interposition 
of the national government was indispensable to 
the protection of life and property. The report of 
General Terry doubtless had considerable influ- 
ence in neutralizing the effect produced by the 
decision of the court in the matter of office-hold- 
ing ; it strengthened the feeling that some action 
by Congress was imperative to break the spirit of 
the old rebel element in Georgia. 

When Congress assembled in December, 1869, 
President Grant, in his annual message, suggested 
the prompt passage of an act requiring the reor- 
ganization of the Georgia legislature. Congress 
conformed to the suggestion, and an act " to pro- 
mote the reconstruction of the state of Georgia " 
became law on the 22d. There was still much 
reluctance manifested by moderate Republicans 
as to supporting the measure, but among the con- 

1 Sen. Ex. Doc, No. 3, 2d sess., 41st Cong. 



THE PROCESS OF RECONSTRUCTION 243 

siderations of expediency which had been adduced, 
that of securing the ratification of the Fifteenth 
Amendment was now urged with especial insist- 
ency. It was perfectly understood that the im- 
mediate outcome of interference by Congress would 
be the substitution of a Republican for a Demo- 
cratic majority in the legislature. The legislature 
had in March, 1869, rejected the Fifteenth Amend- 
ment ; with a reversal of the majority the state 
could be transferred to the list of those ratifying. 
By December, 1869, twenty-two states had ratified ; 
but of these there was doubt as to the validity of 
the act in Indiana and Missouri, and New York 
had since elected a Democratic legislature, which 
was likely to rescind the state's ratification. From 
this showing it could be argued that only nineteen 
ratifications were already sure. Twenty-eight were 
necessary. Of the additional nine Ohio's newly 
elected Republican legislature would doubtless re- 
verse the action of its Democratic predecessor and 
ratify, and favorable action by Mississippi and Texas 
was insured by the terms of the act providing for 
their restoration. Beyond these but five states 
remained whose legislatures were Republican, and 
a sixth was obviously necessary.^ Accordingly a 
clause was added to the bill dealing with Georgia 
requiring ratification of the Fifteenth Amendment 

1 As a matter of fact, Missouri healed the defect in her action 
by a subsequent vote, and that in Indiana was disregarded. Cf., 
for the whole matter, McPherson, Reconstruction, pp. 488, 545, 557. 



244 ^^^ PROCESS OF RECONSTRUCTION 

before her representatives should be admitted to 
Congress. With the addition of this provision 
and the omission of the preamble, the act as passed 
was substantially the same as the House bill de- 
scribed above. 

In accordance with the provisions of this law 
the process of re-reconstruction of Georgia was 
carried through in the first half of 1870.^ The 
governor proceeded in January to reorganize the 
legislature, but his methods excited such vigor- 
ous opposition that the military power had to be 
promptly called in. In view of the situation the 
orders of July, 1868, withdrawing military gov- 
ernment from Georgia were countermanded, and 
General Terry was endowed with all the powers 
of commander of a military district under the Re- 
construction Acts. The general assumed charge 
of the purging of the legislature. Disputed ques- 
tions as to the eligibility of members-elect under 
the Fourteenth Amendment and the acts of Con- 
gress were decided by a committee of officers 
appointed by the commander,^ and twenty-four 
Democrats were excluded from their seats. Fol- 
lowing the example of the majority that excluded 
the negroes in 1868, the Republican majority now 
filled the vacant seats with the candidates who had 
been defeated in the elections, and by the end of 

1 A good sketch of the process is in Ann. Cyc, 1870, sub voc. 
" Georgia." 

2 C/. House Ex. Doc, No. 82, 2d sess., 41st Cong. 



THE PROCESS OF RECONSTRUCTIOM 245 

January the legislature was pronounced good by 
General Terry. It then ratified the Fourteenth 
and Fifteenth Amendments (the former by way of 
special caution lest the earlier ratification should 
be tainted with the defects of the legislature that 
enacted it), elected Republicans to claim seats in 
the Senate at Washington, and then ceased further 
activity until Congress should declare the state 
restored. 

The declaration by Congress was slow in forth- 
coming. The proceedings in the organization of 
the legislature had been of a character to disgust 
many of the strongest supporters in Congress of 
the act under which it had been effected. Dis- 
creditable personal motives had been either clearly 
revealed or strongly suggested in connection with 
official acts of the state administration, and the 
methods of commanding general, governor and 
majority in the legislature were all alike con- 
demned as unlawful by the judiciary committee 
of the Senate.^ The Republican majority in Con- 
gress was divided on the precise status of the state, 
one faction holding that the existing government 
was provisional and fully subject to the will of 
Congress, the other holding that since the restor- 
ing act of June 25, 1868, the state government 
thereby recognized had been a permanent and 
regular state government save as to the defect 
in membership of the legislature, which had been 

1 Sen. Rep., No. 58, 2d sess., 41st Cong. 



246 THE PROCESS OF RECONSTRUCTION 

corrected through the act of December 22, 1869. 
An immediate practical importance was given to 
the disputed point by the fact that its settlement 
involved the continuance or cessation of Governor 
Bullock's control of the state government in 
Georgia. Party lines in the state had been so 
affected by the governor's conduct of affairs that 
the only division playing an important role was 
that into ** Bullock men" and "anti-Bullock men." 
Under such circumstances the moderate Republi- 
cans in Congress thought it best to drop all inter- 
ference with the state as quickly as possible, and in 
such manner as not to appear to favor any personal 
interest ; the radicals were disposed to prolong to 
the utmost the dominance of the " Bullock men," 
who were on the whole most likely to maintain 
Republican party ideas. From February to July 
the bill to pronounce Georgia restored was the sub- 
ject of a most obstinate contest in both houses. 
To the aid of the radical wing of the Republicans 
came the increasing prominence of the Ku Klux 
operations in Georgia and other Southern states. 
But with Democratic aid the moderates held their 
own, though the bill which at last became law on 
July 15 contained no definite settlement of the 
most hotly contested points. 

This act merely recited the ratification of the 
Fourteenth and Fifteenth Amendments, and de- 
clared Georgia entitled to representation in Con- 
gress. It left entirely undetermined the precise 



THE PROCESS OF RECONSTRUCTION 247 

Status of the existing government in the state. 
An attempt on the part of the Bullock party to 
prolong its lease of power by assuming that the 
provisional character of the government only 
ceased after the passage of the act of July 15, 
was frowned upon by the national administra- 
tion,^ and was therefore abandoned. Members 
from Georgia were admitted to both House and 
Senate at the next session of Congress, the Sen- 
ate fighting over again the issues of the state's 
status in connection with the credentials of her 
senators. By finally seating those who were 
elected in July, 1868, the one house of Congress 
seems to have declared that Georgia had been a 
state in full standing from before that date. The 
course of the executive in exercising military power 
in the state in 1870 cannot be reconciled with this 
view. But whatever the solution of the problem 
may be, from the seating of her members in the 
Forty-first Congress, there was no longer doubt 
that the reconstruction of Georgia was complete. 

VII 

The reconstruction of the Southern states, by 
the process which we have followed above, is one 
of the most remarkable achievements in the history 
of government. As a demonstration of political 
and administrative capacity, it is no less con- 

1 Ann. Cyc, 1870, p. 338. 



248 THE PROCESS OF RECONSTRUCTION 

vincing than the subjugation of the Confederate 
armies as an evidence of military capacity. The 
Congressional leaders — Trumbull, Fessenden, Ste- 
vens, Bingham and others — who practically di- 
rected the process of reconstruction, were men of 
as rugged a moral and intellectual fiber as Grant, 
Sherman and the other officers who crushed the 
material power of the South. The obstacles to 
success were as great for the one set of men as 
for the other. In the path of reconstruction lay 
a hostile white population in the South, a hostile 
executive at Washington, a doubtful if not decid- 
edly hostile Supreme Court, a divided Northern 
sentiment in respect to negro suffrage and an 
active and skillfully directed Democratic Party. 
Yet the process as laid out in 1867 was carried 
through to its completion. With much the feel- 
ings of the prisoner of tradition who watched the 
walls of his cell close slowly in from day to day 
to crush him, the Southern whites saw in the suc- 
cessive developments of Congress' policy the re- 
morseless approach of negro rule. The fate of 
the Southern whites, like that of the prisoner of 
tradition, may excite our commiseration ; but the 
mechanism by which the end was achieved must 
command an appreciation on its merits. 

From a constitutional point of view, the actual 
conduct of the reconstruction has no particular 
interest. The power of the national government 
to impose its will upon the rebel states, irrespec- 



THE PROCESS OF RECONSTRUCTION 



249 



tive of any restriction as to means, was assumed 
when the first Reconstruction Act was passed, and 
this assumption was acted upon to the end. Only 
in connection with the relations between legislature 
and executive were important issues raised during 
the process, and these are not within the scope of 
this essay. 

It is from the political point of view that the 
process of reconstruction is most interesting to the 
historical observer. Given the end, there is some- 
thing refreshingly efficient in the means employed 
to achieve it. Wide and deep divergencies of opin- 
ion there were in the Republican majority in Con- 
gress ; but they were fought out and settled in the 
party caucus ; the capacity for discipline, which is 
the surest evidence of political wisdom under party 
government, manifested itself in a high degree ; 
and the measures that determined the fate of the 
South rolled inexorable as the decrees of Provi- 
dence from the two-thirds votes of House and 
Senate. Was a restrictive construction of a law 
devised by clever lawyers, new legislation promptly 
overruled it. Was the authority of the attorney- 
general invoked on the side of tradition and legal- 
ism. Congress ordered the commanders to disregard 
him. Were the ordinary methods of political cam- 
paigning resorted to by the whites to profit by the 
ignorance or stupidity of the blacks, general orders 
from headquarters nullified them. Did the Con- 
servatives win a success, as in Alabama, by exact 



250 THE PROCESS OF RECONSTRUCTION 

conformity to the law, Congress ignored its own 
law and gave victory to the other side. Was an 
assurance embodied in law that admission of a 
state should follow ratification of one constitu- 
tional amendment, no hesitation was felt about 
postponing admission till the ratification of another. 
Such methods as these w^ere not the methods com- 
mon to political practice in republican governments. 
But no more were the circumstances under which 
they were employed common in republics. The 
methods were well adapted to the end, and the end 
was a huge social and political revolution under 
the forms of law. Another way of attaining the 
end would have been a simple decree by the 
majority in Congress to the effect that the freed- 
men and white Unionists in the rebel states should 
organize governments, and control those states 
indefinitely thereafter. Essentially that was the 
conscious practical purpose of reconstruction, and 
everything beyond that in the content and execu- 
tion of the Reconstruction Acts was incidental. 
But the incidental testifies to the sagacity of those 
who directed the policy. 

That the purpose of reconstruction evinced as 
much political wisdom as the methods by which it 
was attained, is not clear. To stand the social 
pyramid on its apex was not the surest way to 
restore the shattered equilibrium in the South. 
The enfranchisement of the freedmen and their 
enthronement in political power was as reckless a 



THE PROCESS OF RECONSTRUCTION 25 1 

species of statecraft as that which marked **the 
blind hysterics of the Celt" in 1789-95. But the 
resort to negro suffrage was not determined to any 
great extent by abstract theories of equality. 
Though Charles Sumner and the lesser lights of 
his school solemnly proclaimed, in season and out, 
the trite generalities of the Rights of Man, it was 
a very practical dilemma that played the chief part 
in giving the ballot to the blacks. By 1867 it 
seemed clear that there were three ways available 
for settling the issues of the war in the South : 
first, to leave the Johnson governments in control 
and permit the Southern whites themselves, through 
the Democratic Party, to determine either chiefly 
or wholly the solution of existing problems ; second, 
to maintain Northern and Republican control 
through military government ; and third, to main- 
tain Northern and Republican control through 
negro suffrage. The first expedient, however de- 
fensible as to social and economic readjustment in 
the South itself, was from the standpoint of the 
great national issues demanding settlement gro- 
tesquely impossible. The choice had to be made 
between indefinite military rule and negro suffrage. 
It was a cruel dilemma. The traditional antipathy 
of the English race toward military power deter- 
mined resort to the second alternative. It was 
proved by the sequel that the choice was unwise. 
The enfranchisement of the blacks, so far from 
removing, only increased, the necessity for military 



252 THE PROCESS OF RECONSTRUCTION 

power. The two expedients were not alternative, 
but indissolubly united. Months before the final 
restoration of Georgia this truth had begun to 
make itself manifest. On March 30, 1870, the 
ratification of the Fifteenth Amendment had been 
proclaimed, and just two months later the first 
enforcement act became law. By the policy thus 
expressed the issue was definitely made up which 
ended in the undoing of reconstruction. Seven un- 
wholesome years were required to demonstrate that 
not even the government which had quelled the 
greatest rebellion in history could maintain the 
freedmen in both security and comfort on the necks 
of their former masters. The demonstration was 
slow, but it was effective and permanent. 



THE IMPEACHMENT AND TRIAL OF 
PRESIDENT JOHNSON 

The differences of opinion in the Republican 
Party as to the method of dealing with the states 
lately in rebellion resulted, in February of 1866, 
in a definite declaration of war between President 
Johnson and the radical leaders in Congress.^ It 
was not long before the bad judgment and worse 
taste 2 of the President drove over to his enemies 
nearly the whole body of Republican congress- 
men, and compelled him to look for support to an 
insignificant minority consisting chiefly of Demo- 
crats. By midsummer the contest had shaped it- 
self into a pitched battle between the executive 
and the legislative departments of the government. 
Mr. Johnson claimed that the policy proposed by 
Congress involved the destruction of the consti- 
tution ; his opponents charged that his course had 
been one of usurpation, and that his purpose was 
to establish a despotism based on rebel dominion. 
Each side professed to represent the people, and 

^ Ante, p. 90. 

2 Especially exhibited in his public speeches. See McPherson, 
Reconstruction, pp. 58, 127 et seq. 
253 



254 ^^^ IMPEACHMENT AND 

each bent all its energies to securing a favorable 
verdict in the Congressional elections in the au- 
tumn. The contest was an intensely bitter one. 
The canvass was as thorough as the importance 
of the issues demanded, and the result was an 
overwhelming defeat for the President. A ma- 
jority almost as great as that in the Thirty-ninth 
was secured to oppose him in the Fortieth Con- 
gress. It was made certain that his vetoes could 
be overridden, and that, accordingly, reconstruc- 
tion could proceed on the lines laid down by the 
legislature. 

But it was hardly to be expected that President 
Johnson would quietly accept such a view of the 
situation. The asperities of the campaign had not 
tended to mitigate his hostility to his radical ene- 
mies, and his historic feat in " swinging round 
the circle" ^ had stimulated his enemies even more 
perhaps than it had his friends. He felt his duty 
to sustain the constitution not in any way affected 
by the determination of any number of persons that 
the constitution should not be sustained. The rad- 
icals in Congress looked forward to the same op- 
position that had so seriously interfered with their 
progress in the last session. Moreover, Mr. John- 
son's control of the official patronage was a source 
of the deepest concern to many Republican parti- 

1 For the origin of this phrase, so famous in the campaign 
literature of the period, see his Cleveland speech, McPherson, 
Reconstruction, p. 135. 



TRIAL OF PRESIDENT JOHNSON 255 

sans.^ From the circumstances of the war, the 
patronage in the hands of the President at this 
time was more extensive than probably at any 
other period in the history of the nation. Mr. 
Johnson was no civil-service reformer, and the 
steadfastness with which he employed this great 
weapon for the purposes of his policy gave bitter 
offence to the Congressional majority, whose mem- 
bers found themselves cut off from the spoils. 
Mr. Wade, of Ohio, who was also notoriously free 
from any taint of reform principles, was president 
pro tern, of the Senate, and hence was only one 
step from the White House. Under such circum- 
stances, with a majority in the House sufficient to 
overcome all obstacles to an accusation, and with 
an ample majority in the Senate to convict, it is not 
strange that attention was called to the grounds for 
impeachment of the President. 



I 

On December 17, 1866, about two weeks after 
the opening of the second session of the Thirty- 
ninth Congress, Representative Ashley, of Ohio, 
took the first formal step in the matter. He 
sought to get before the House a resolution for 
a select committee to inquire into the advisability 
of impeaching. His effort at this time failed. On 

1 Cf. Ingersoll, Life of Greeley, p. 424 ; also Blaine, Twenty 
Years of Congress, II, 267. 



256 THE UIPEACHMENT AND 

the 7th of January, however, he was successful in 
securing the passage of a resolution directing the 
judiciary committee to institute the inquiry.^ But 
March 4th came, and the Thirty-ninth Congress 
expired without further action. The judiciary 
committee reported that it had been diligently at 
work in accordance with Ashley's resolution, but 
that it had not been able to accomplish enough to 
make any definite presentation to the House ; the 
committee could only state that enough had been 
learned to warrant further investigation. ^ 

Under the law passed by its predecessor, the 
Fortieth Congress met in its first session on the 
day the former adjourned sine die. Three days 
later the impeachment inquiry was referred to the 
new judiciary committee. The constitution of 
this committee had been carefully watched by the 
friends of impeachment, and, as appeared later, 
they were quite confident that it had been arranged 
to suit them. Great was the disgust, therefore, 
of the radicals, especially Thaddeus Stevens and 

1 On this same day another resolution to impeach was offered, 
the preamble alleging that the purpose of the impeachment was 
" to give effect to the will of the people as expressed at the polls 
during the recent elections." McPherson, Reconstruction, p. 187. 
In the debate on this resolution Johnson was charged with collu- 
sion with the rebels in Lincoln's assassination, for purposes of his 
own aggrandizement and their restoration to power (Globe, 2d sess,, 
39th Cong., p. 443). This charge had been made before, and is 
characteristic of the spirit in which the conflict with the President 
was carried on. 

2 McPherson, Reconstruction, p. 188. 



TRIAL OF PRESIDENT JOHNSON 257 

Benjamin F. Butler, when on July loth the com- 
mittee reported that its labor was completed, and 
that its members stood five against and four in 
favor of impeachment.^ 

There is no doubt that the House at this time 
was in sympathy with the majority of the com- 
mittee. Mr. Pike, of Maine, expressed the preva- 
lent feeling when he described the question as 
merely whether, after having killed the President 
politically, they should proceed to mangle the 
corpse. "It is one question," he said, "whether 
he has discharged the duties of his office accepta- 
bly, and quite another question whether, with him 
for a foot-ball, this house shall enter upon the 
game of President-making." ^ But the persons who 
were seeking to play that very game were not dis- 
couraged by their first failure. By sharp parlia- 
mentary practice they succeeded in getting the 
matter before the judiciary committee again, with 
orders to report in the autumn. And when autumn 
came their confidence was justified by the an- 
nouncement that, by a vote of five to four, the 
committee had determined to report a resolution 
of impeachment. No new evidence had been 
secured, but through some instrumentality not 
disclosed, one member of the committee ^ had been 
brought to see the light. Mr. Boutwell, of Massa- 
chusetts, made the report, and for the first time 

1 Globe, 1st sess., 40th Cong., p. 565. ^ /^^v., p. 587. 

« Churchill, of New York. 



258 THE IMPEACHMENT AND 

in the history of the United States, the House of 
Representatives was required to vote upon the 
direct question of impeaching the highest officer 
of the nation. 

The consideration of the resolution was taken 
up at the opening of the second session of the 
Fortieth Congress, in December of 1867. It ap- 
peared from the committee's report and from the 
debate, that the points of variance between the 
Repubhcan factions were two in number. The first 
was as to what constituted impeachable offences 
in our system. The constitution provides that the 
House may impeach any civil officer for "treason, 
bribery or other high crimes and misdemeanors." 
Treason and bribery were sufficiently accurate 
terms, but what should be regarded as the scope 
of "high crimes and misdemeanors".-^ By the 
radicals it was held that these words were em- 
ployed in the widest and most extended sense 
known to jurisprudence, and included all cases of 
misbehavior in office, whether known to common 
or statute law or not. The moderate Republicans 
pretty generally adopted the view that these words 
limited the list of impeachable offences to such as 
were indictable either at common or by statute 
law. Otherwise, it was said, it would be in the 
competence of the Senate to define an offence as 
it proceeded with the trial, and the accused would 
have no legal certainty on which to base his de- 
fence. Another theory, maintained in this in- 



TRIAL OF PRESIDENT JOHNSON l^C) 

stance chiefly by the Democrats, held that the 
expression ''high crimes and misdemeanors" was 
used generically in the constitution, and that it 
was left for Congress to declare by legislation 
what specific acts should be included in this desig- 
nation. As Congress had taken no steps to define 
the offences, no impeachment could be based upon 
those words of the organic law. 

But besides this diversity of opinion on the pre- 
liminary legal question, a very radical difference 
was manifested as to the sufificiency of the evidence 
collected by the committee as a basis for action 
against Mr. Johnson. Over a thousand quarto 
pages of printed testimony proved that no clue, 
however slight, had been left untraced. Never had 
the public life of a President been subjected to 
more searching investigation by more hostile inves- 
tigators. Yet after all, Mr. Boutwell was obliged 
to acknowledge that no specific offence could be 
charged as a basis for action ; only from a vast 
number of acts, related and individual, the general 
accusation was framed, that Mr. Johnson had used 
the power of the nation for the purpose of recon- 
structing the government in the interest of rebel- 
lion, and of restoring the old Democratic Party to 
power.i So vague a charge could scarcely be ex- 
pected to entice the conscientious Republicans into 
the radical scheme. The deposition of a President 
seemed too serious a matter to rest for justification 

1 Globe, 2d sess., 40th Cong., Appendix, p. 60. 



260 THE IMPEACHMENT AND 

upon mere party apostasy. On December 7, by a 
vote of one hundred and eighty to fifty-seven, the 
resolution was lost, and the first formal attempt to 
oust Mr. Johnson was proclaimed a failure.^ 

Much angry recrimination was indulged in by 
the two factions of Republicans as the result of 
this vote, but the radicals were forced to wait for 
some actual crime or misdemeanor before they 
could expect to carry their point. Among the 
moderates was a very large body who believed 
that by means of the two-thirds majority in each 
house the policy they favored could be carried out, 
in spite of executive hostility, without proceeding 
to the extreme assertion of their power. It is 
beyond doubt that the question of succession was 
more or less potent in forming opinion on this 
point; Senator Wade, who would succeed to the 
presidency in case of Johnson's removal, was not 
popular with the Eastern men. But those who op- 
posed impeachment were far from lagging behind 
in the work of tying the President's hands so as 
to render him harmless while still in office. The 
impeachment, when it came, was the result and 
culmination of a series of assaults on the executive 
power which for a time carried the centre of gravity 
of our constitutional system as near to the revolu- 
tion point on the legislative side as the exigencies 
of civil war had a few years before carried it on the 
executive side. The President's pardoning power 

1 McPherson, Reconstruction, p. 264. 



TRIAL OF PRESIDENT JOHNSON 26 1 

was limited ; ^ his military authority as commander- 
in-chief was shorn of essential attributes ;2 and 
his civil prerogative received a terrible blow 
through the Tenure-of-Office Act passed March 2, 
1867. It was in consequence of Mr. Johnson's 
struggles to tear away the meshes which Congress 
was so mercilessly weaving about him that a 
second and then a third and successful attempt 
at impeachment were made. 

II 

It had been understood, prior to the passage of 
the Tenure-of-Office Act, that Mr. Johnson's policy 
in regard to the South had the approval of all his 
cabinet save one member. The dissenter was 
Mr. Stanton, one of the four remaining members 
of Mr. Lincoln's cabinet.^ Up to the inauguration 
of military rule in the Southern states, the differ- 
ence between the President and his secretary of 

1 Cf. act of Jan. 17, 1867, repealing the clause of the Confiscation 
Act of July 17, 1862, which authorized the President to pardon by 
proclamation; and see Blaine, Twenty Years of Congress, II, 281. 
By the Reconstruction Act of July 19, 1867, it was specifically de- 
clared that no right to vote should result from " any executive par- 
don or amnesty"; and the Fourteenth Amendment conclusively 
divested the President's pardon of political significance by confer- 
ring the power to remove disabilities upon Congress. 

•■2 Army Appropriation Act, March 2, 1867. Cf. McPherson, 
Reconstruction, p. 178. 

3 The others were Messrs. Seward, McCuUough and Welles. 
Three of Mr. Lincoln's secretaries, Messrs. Dennison, Speed and 
Harlan, had resigned in 1866, in consequence of the President's 
breach with Congress, 



262 THE IMPEACHMENT AND 

war had not occasioned any unpleasantness. But 
when the army was called upon for active partici- 
pation in carrying out the policy of Congress, the 
fact that Stanton was in sympathy with that policy 
became immediately of the highest importance. 
The Tenure-of-Office Act, by which the President 
was deprived of the power of removal, also assumed 
great significance. In executing the Reconstruc- 
tion Acts, the administration adopted the policy of 
conforming to the letter of the law with great ex- 
actness, while giving the least possible heed to what 
was deemed its revolutionary spirit. With what 
success this policy was carried out is indicated 
by the supplementary act of July 19, 1867, which 
Congress was obliged to add to its original enact- 
ment. But the secretary of war was no party 
to the devising and execution of this Presidential 
scheme. He became, on the contrary, altogether 
isolated from the rest of the administration, and, as 
his enemies charged, employed his position only to 
obstruct executive action and betray the secrets of 
the cabinet consultation room to the President's foes. 
Stanton remained impervious to repeated inti- 
mations that his retirement would not be opposed 
by the President, till, on the fifth of August, 1867, 
Mr. Johnson formally called for his resignation. 
The secretary declined to resign before the next 
meeting of Congress. A week later the President 
sent a note in these words : " By virtue of the 
power and authority vested in me as President by 



TRIAL OF PRESIDENT JOHNSON 263 

the constitution and laws of the United States, you 
are hereby suspended from office as secretary of 
war." At the same time General Grant was au- 
thorized to act as secretary ad interim. Stanton 
replied, denying the President's right to suspend 
him '' without the advice and consent of the Sen- 
ate, and without legal cause " ; but, in view of the 
appointment of the General of the Army, submit- 
ting, under protest, to superior force.^ 

It is important just at this point to consider 
under what authority this order of suspension was 
issued. Before the passage of the Tenure-of-Office 
Act, while the power of removal was recognized as 
belonging to the executive, obnoxious officers had 
been generally disposed of during a recess of the 
Senate by simple removal, and when the Senate 
was in session, by the appointment of a successor. 
Under this act, however, no removal was permitted 
during a recess. The second section provided that 
in case of incapacity or legal disqualification for 
the performance of his duties an officer might be 
suspended by the President ; but the cause must 
be reported to the Senate within twenty days after 
the opening of the next session, and if that body 
refused to concur in the suspension, the officer 
should immediately resume his duties.^ In his 
communication to Stanton, Johnson stated his 

1 For the whole correspondence, see McPherson, Reconstruc- 
tion, p. 261. 

2 For text of bill, see McPherson, Reconstruction, p. 176. 



264 THE IMPEACHMENT AND 

authority to be "the constitution and the laws," 
but omitted to specify what laws, and especially 
whether the Tenure-of-Office Act was one of them. 
This omission, as afterward appeared, was far from 
unintentional. 

On December 12 the President sent to the 
Senate a message setting forth his action in sus- 
pending Stanton, and stating at length the inhar- 
monious situation which the secretary's presence 
in the cabinet had produced.^ But here again no 
mention was made of the Tenure-of-Office Act as 
the authority for the suspension. The act was 
discussed, and its unconstitutionality asserted in 
terms similar to those of the veto message when 
the law passed, but no admission was made of its 
pertinence to the present case. The Senate de- 
bated the President's communication for about a 
month, and finally, on January 13, 1868, refused to 
concur in Stanton's suspension. This action was 
taken in accordance with the theory that the sus- 
pension was based on the Tenure-of-Office Act. 
Notice of the Senate's action was immediately 
served upon General Grant, who thereupon notified 
Mr. Stanton that, under the Tenure-of-Office Act, 
the functions of the ad ijtierim incumbent had 
ceased. The general thus committed himself to 
the Senatorial view of the President's action. 
Stanton resumed possession of the War Depart- 
ment, but without any communication with, or 

1 See supplement to Cong. Globe, " Trial of the President," p. 51. 



TRIAL OF PRESIDENT JOHNSON 265 

recognition by, the head of the administration.^ 
The situation was anomalous. It could only be 
explained by an official announcement of Johnson's 
attitude toward the Tenure-of-Office Act. If he 
recognized that act as valid, Stanton must now be 
his secretary of war; if he did not recognize it, 
the War Department must be without a head. 

On January 29 Mr. Johnson instructed General 
Grant not to obey any order from that depart, 
ment, assumed to be issued by the direction of 
the President, unless such order should be known 
by the general to have been authorized by the 
executive. Grant replied that under the law 
he should be obliged to regard orders coming 
from the secretary of war as authorized by the 
President. This response precipitated a corre- 
spondence of a somewhat acrimonious character 
between Johnson and Grant, in which the motives 
of the former in the course pursued in respect to 
Stanton were fully revealed.^ The President, it 
appeared, had resolved to get rid of the secre- 
tary at all hazards. He refused to admit that the 
Tenure-of-Office Act covered Stanton's case, though 
he was aware that the latter held that it did. But 
even if the terms of the act did apply, the Presi- 
dent was convinced that the law was a flagrant 
breach of his constitutional rights, and was deter- 

1 See Stanton's letter transmitting to the House the Grant- 
Johnson correspondence; McPherson, Reconstruction, p. 282. 

2 For the correspondence, see McPherson, Reconstruction, p. 283. 



266 THE IMPEACHMENT AND 

mined to bring the matter to a judicial decision. 
For this purpose, having once dispossessed Stan- 
ton, he proposed to make the secretary apply to 
the courts for reinstatement, and thus to test the 
question of constitutionality. In pursuance of this 
plan. General Grant had been requested to remain 
in possession of the department, whether the Sen- 
ate should concur in the suspension or not. If the 
Senate should refuse to concur, Stanton would re- 
gard himself as entitled to immediate possession ; 
but if Grant should hold on, the only method through 
which Stanton would be able to secure his office 
would be by resort to the courts. Grant manifested 
a disinclination to become involved in the political 
quarrels of the departments, and thereupon Johnson 
requested that if he should decide not to take the 
responsibility, he should let the President know be- 
fore the Senate acted, in order that an incumbent 
might be secured who could be relied upon to carry 
out the executive's plan. As to the sequel, author- 
ities differ. Mr. Johnson and five of his cabinet 
asserted that General Grant agreed to do as 
requested, and then, in deliberate violation of his 
promise, held on till the Senate's action relieved 
him. The general, on the other hand, denied hav- 
ing been a party to any such agreement. What- 
ever the truth of the case, however, it was certain 
that the President's plan had miscarried, and that, 
if the Tenure-of-Office Act was valid and appli- 
cable, the obnoxious Stanton was still an officer 
of the administration. 



TRIAL OF PRESIDENT JOHNSON 267 ^ 

The correspondence between Johnson and Grant 
was called for by the House of Representatives, 
and formed the basis of a second attempt at im- 
peachment. An effort was made to formulate an 
indictment on the President's instructions to Grant 
not to obey the orders of his superior in the War 
Department. The careful wording of the instruc- 
tions, however, and their total lack of effect, proved 
too serious obstacles for even the hot-heads of the 
reconstruction committee to surmount. Only three 
out of the nine members of the committee favored 
action. 1 ^ 

It is to be noticed that the conflict between the 
executive and the legislature had now centred in 
a struggle for the control of the military depart- 
ment. This fact had the effect of throwing over 
the situation a sort of martial glamour, which was 
artfully utilized to stimulate the passions of parti- 
sans on both sides. Wars and rumors of wars 
were the topics of the times. The President's 
hostility to Secretary Stanton was treated as evi- 
dence of a design to employ the army in a repe- 
tition of "Pride's Purge." Congress was to be 
dissolved, and Andrew Johnson was to be king.^ 
At the same time, the friends of Mr. Johnson 
pointed with alarm to the open strides of the radi- 

1 McPherson, Reconstruction, p. 265. 

2 Kelley, of Pennsylvania, drew a harrowing picture of the Presi- 
dent in the role of the third Napoleon. — Globe, 2d sess., 40th Cong., 
p. 1348. 



268 THE IMPEACHMENT AND 

cals toward their object of converting the govern- 
ment, by force, from the balanced system of the 
fathers into the dominion of a party caucus. Sub- 
mission to the dictates of this oligarchy was to be 
enforced through the army, against all efforts of 
the President to defend the rights conferred upon 
him by the constitution. 

In the midst of such recriminations and in the 
extraordinary position of the War Department, a 
crisis must be reached soon. It came on the twenty- 
first of February. On that day the President issued 
two orders, one removing Stanton from office as 
secretary of war, and the other appointing Ad- 
jutant-General Lorenzo Thomas secretary ad in- 
terim, and directing him to assume immediately the 
duties of the position. ^ Thomas repaired to Stan- 
ton's office and communicated to him the Presi- 
dent's will. Without indicating what course he 
should pursue with reference to the order of re- 
moval, Stanton asked until the next day to adjust 
his personal affairs in the office. His request was 
granted. Early the next morning Thomas was 
arrested by the District police on a charge of vio- 
lating the Tenure-of-Office Act. He had been 
boasting that he would use force to eject Stanton 
in case of resistance, and the latter had sworn out 
a warrant for his arrest. Having been released 
on bail, the somewhat humbled secretary ad in- 
terim proceeded again to the War Department and 

1 McPherson, Reconstruction, p. 265. 



TRIAL OF PRESIDENT JOHNSON 269 

formally demanded possession. Stanton formally 
refused to recognize the order of removal, and 
ordered Thomas to his duties as adjutant-general. 
The latter thereupon reported to the President, 
and affairs were left in statu quo pending the next 
move toward either judicial or forcible settlement 
of the dispute.^ Mr. Johnson immediately took 
steps toward bringing the defiant secretary before 
the Supreme Court by a writ of quo warranto^ 
but the arraignment of Thomas as a criminal, 
and the energetic action of Congress, soon to be 
narrated, quickly put the President on the defensive 
and interrupted all aggressive action. The lawyers 
who took charge of Thomas's defence did indeed 
devise a plan by which his arrest could be utilized 
to bring the whole subject before the Supreme 
Court by a writ of habeas corpus ; but at the very 
first manifestation of such a purpose the ardor of 
the prosecution was seized with a sudden chill, and 
the culprit whose alleged crime had convulsed the 
whole nation was released from custody against the 
desire of his own counsel.^ All interest then be- 
came centred in the steps which Congress was tak- 
ing for the maintenance of its authority as vested 
in Stanton. 

On the day of the removal Mr. Johnson sent a 
message to the Senate, transmitting copies of the 
orders issued, and basing his action, as in the case 

1 Testimony of Thomas, Trial of the President, pp. 136 et seq. 

2 Testimony of Cox, Trial, pp. 201 et seq. 



2/0 THE IMPEACHMENT AND 

of the suspension, on the "power and authority 
vested in the President by the constitution and 
laws of the United States." The Senate's reply 
was a resolution, passed by a party vote, that " un- 
der the constitution and laws of the United States, 
the President has no power to remove the secre- 
tary of war and designate any other officer to per- 
form the duties of that office ad interim^ On the 
same day, Mr. Stanton communicated the order of 
removal to the House of Representatives. It was 
referred to the reconstruction committee, and on 
the following day the committee reported a reso- 
lution, that "Andrew Johnson, President of the 
United States, be impeached of high crimes and 
misdemeanors in office." A continuous session of 
two days, devoted to debate, ended with the adop- 
tion of the resolution, 128 to 47, a strict party vote.^ 
To those Republicans who had opposed the pre- 
vious attempts on the ground that only a technical 
crime or misdemeanor could give good cause for 
impeachment, the President seemed to have de- 
liberately removed the obstacle which their con- 
sciences had raised.2 The Tenure-of-Office Act 
prohibited removal from office by the President 
except with the advice and consent of the Senate. 
In section six it was enacted that " every removal, 
appointment or employment made, had or exercised 

1 McPherson, Reconstruction, p. 266. 

2 See remarks of Wilson, of Iowa, Globe, 2d sess., 40th Cong., 
p. 1386. 



TRIAL OF PRESIDENT JOHNSON 2/1 

contrary to the provisions of this act, and the mak- 
ing, signing, sealing, countersigning or issuing of 
any commission or letter of authority for or in 
respect to any such appointment or employment, 
shall be deemed, and are hereby declared to be, 
high misdemeanors." In the face of these pro- 
visions the President's action appeared to be a 
most gross violation of the laws he had sworn to 
maintain. 

From the moment the resolution of impeach- 
ment was adopted the moderate wing of the Re- 
publicans in the House disappeared, and many of 
its leaders joined in the struggle for prominence 
in the great achievement of ousting a President. 
Under the special leadership of Messrs. Thaddeus 
Stevens, Benjamin F. Butler and George S. Bout- 
well, matters were pushed with the utmost dili- 
gence, and, on the second of March, nine articles 
were adopted by the House. The next day two 
others were added, and on the fourth the articles 
were formally exhibited to the Senate. The latter 
body met as a court of impeachment on the follow- 
ing day, with Chief Justice Chase in the chair. Mr. 
Johnson appeared by counsel, and, on asking forty 
days in which to prepare an answer to the charges, 
was allotted ten. The preliminaries having been 
settled, the trial actually began on the thirtieth of 
March, with an opening address for the prosecu- 
tion by Mr. Butler.^ 

1 The '* managers " appointed by the House to conduct its case 



2/2 THE IMPEACHMENT AND 

III 

As to the issues involved in the trial, all that 
the limits of this paper permit is a consideration 
of the most fundamental questions of constitu- 
tional law presented. The eleven articles of im- 
peachment exhibited to the Senate charged the 
President with high crimes and misdemeanors in 
office, in connection with five different matters : 
(i) The order removing Stanton; (2) the order 
appointing Thomas ; (3) a conversation with Major- 
General Emory, in which Mr. Johnson declared 
unconstitutional the law requiring all orders to be 
issued through the General of the Army ; (4) three 
public speeches of the President, in which Con- 
gress was criticised in very harsh and intemperate 
language; and (5) his opposition to the execution 
of the reconstruction measures of Congress.^ 

By the first article, the order removing Stanton 
was declared to be an intentional violation of the 
Tenure-of-Office Act, and also of the constitution. 
Articles four to eight represented the removal as 

were Messrs. Bingham, Boutwell, Wilson of Iowa, Butler, Williams, 
Logan and Stevens. Of these, Bingham and Wilson had opposed 
the first attempt to impeach, but the others were all radicals of the 
most extreme type. For the defence of the President appeared 
Mr. Stanbery (who resigned the office of attorney-general to take 
part in the trial), ex-Judge Benjamin R. Curtis, and Messrs. Evarts, 
Nelson and Groesbeck. 

1 For the articles, see Trial of the President (supplement to the 
Cong. Globe), p. i. 



TRIAL OF PRESIDENT JOHNSON 273 

the result of a conspiracy, on the part of the Presi- 
dent and General Thomas, to prevent Stanton 
from holding his lawful office, to prevent the exe- 
cution of certain laws, to seize the property of the 
United States in the War Department, and for 
other illegal purposes. The conspiracy charges 
were based on the law of July 31, 1861, which had 
been enacted to make criminal the actions of the 
rebels.^ Article two declared the President guilty 
of intentional violation of the constitution and of 
the Tenure-of-Office Act, in issuing the letter of 
authority to Thomas, without the consent of the 
Senate, though in session, and when there was no 
vacancy in the office of secretary of war. The 
third article represented the same act simply as 
being without authority of law. Article nine 
charged the President with a high misdemeanor in 
seeking to induce General Emory to violate the 
law in reference to the issuing of orders in the 

1 The act was as follows : " If two or more persons within any 
State or Territory of the United States shall conspire together to 
overthrow, or to put down or to destroy by force, the government 
of the United States, or to levy war against the United States, or to 
oppose by force the authority of the government of the United States; 
or by force to prevent, hinder or delay the execution of any law of 
the United States; or by force to seize, take or possess any prop- 
erty of the United States against the will or contrary to the author- 
ity of the United States; or by force or intimidation or threat, to 
prevent any person from accepting or holding any office or trust or 
place of confidence under the United States; each and every person 
so offending shall be guilty of a high crime, etcr—12 Statutes at 
Large, p. 284. 



274 THE IMPEACHMENT AND 

army. The tenth article was only adopted by the 
House after the most strenuous efforts of General 
Butler to secure such action. It quoted from the 
published reports of divers speeches delivered by 
Mr. Johnson during the campaign of 1866,^ and 
charged him with having sought '' to destroy the 
regard and respect of all the good people of the 
United States for the Congress and legislative 
power thereof/' and to excite the odium and re- 
sentment of the same good people against Con- 
gress and the laws by it duly and constitutionally 
enacted. The eleventh article was rather difficult 
to analyze, but Chief Justice Chase decided the 
gravamen of the article to be that the President 
attempted to defeat the execution of the Tenure- 
of-Office Act ; but his attitude toward Congress 
and its reconstruction policy was introduced as 
means contrived in furtherance of this attempt.^ 
Skilful hands in the House had drawn up this 
article to accommodate the conscientious scruples 
or inconvenient records of certain senators in ref- 
erence to the scope of the President's power of 
removal. By involving the general reconstruction 
issue this object was attained. 

Of the conspiracy charges little need be said. 

1 The three speeches from which extracts were made in the speci- 
fications under article ten were delivered respectively at Washing- 
ton, Cleveland and St. Louis, on August i8, September 3 and 
September 8, 1866. For the full reports of the speeches, see 
McPherson, Reconstruction, pp. 127, 134 and 136. 

2 Trial of the President, p. 409. 



TRIAL OF PRESIDENT JOHNSON 275 

The evidence introduced to support them was 
ludicrously insufficient. No vote was ever reached 
on the articles embodying them, but the written 
opinions of the senators indicate clearly that none 
but the most violent radicals would have regarded 
the charges as proved. The same may be said 
of the Emory article. It appeared from the testi- 
mony that the President's expression of opinion 
to the general on the law in question was of the 
most casual nature, and wholly devoid of any indi- 
cation of a design to corrupt the officer.^ As to 
the speeches of Mr. Johnson, they had constituted 
one of the grounds for the previous attempt to 
impeach. One of the managers now acting for 
the House, Mr. Wilson, of Iowa, had written an 
elaborate report from the judiciary committee, 
denying that the President's speech-making con- 
stituted an impeachable offence. The report had 
been sustained by the House's action, and it now 
required all the assurance which General Butler 
could boast to ask for conviction on the article 
thus condemned. The defense paid slight atten- 
tion to this part of the case, and in argument relied 
almost entirely on the authorities which Manager 
Wilson had so kindly provided. Such of the mod- 
erate Republican senators as deigned to notice the 
tenth article in their written opinions, did so only 
to deny its constitutionality. 

1 See testimony of General Emory and of Secretary Welles and 
his son, Trial, pp. 78, 221, 235. 



2/6 THE IMPEACHMENT AND 

The questions, therefore, to which our attention 
will be confined are such as arose in connection 
with the removal of Stanton and the appointment 
of Thomas, and the relation of these acts to the 
constitution and the laws. What these questions 
were will appear from the President's formal reply 
to the articles presented by the House. To the 
first article the response ^ was substantially as 
follows : Stanton was appointed by Lincoln, and 
commissioned, under the act of 1789 establishing 
the War Department, to hold his office during the 
pleasure of the President. For the conduct of 
this department the President, as chief executive, 
is, under the constitution, responsible. A sense 
of this responsibility contributed to the conviction 
in the mind of the President, in August, 1 867, that 
Stanton should no longer continue in the office. 
An additional ground for this conviction was the 
fact that the relations between Stanton and the 
President no longer permitted the latter to resort 
to the secretary for advice, as was his constitutional 
right. He had accordingly suspended Stanton 
from office, not under the Tenure-of-Office Act, 
till the next meeting of the Senate (and now is 
revealed the true bearing of the President's silence, 
before mentioned, in respect to his authority for 
the suspension), but indefinitely, and at the pleasure 
of the President, under the belief that the power 
of removal confided to the executive by the con- 

1 Trial, p. 12. 



TRIAL OF PRESIDENT JOHNSON 277 

stitution included the power of indefinite suspen- 
sion. The President further maintained that the 
power of removal was a constitutional right which 
no legislation could take from him. Such being 
the case, the Tenure-of-Office Act was void. But 
even while he entertained this belief, and was 
further satisfied that the first section of the act 
did not apply to Stanton, the President had felt so 
strongly the importance of getting rid of the sec- 
retary that he had sought, by reporting the sus- 
pension to the Senate in apparent conformity with 
the obnoxious act, to accomplish that high purpose 
without raising the conflict on the constitutional 
question. Having failed in securing his object, 
nothing remained for him but to take such steps 
as he should deem necessary and proper for bring- 
ing to judicial decision the question of Stanton's 
right to resume his office. With this end, and 
this end only, in view, the President had issued 
the order of removal to Stanton, and the letter of 
authority designating General Thomas as secretary 
ad interim. As to this designation of a temporary 
officer, the President denied that it was an appoint- 
ment such as required the consent of the Senate, 
but claimed that it was in accordance with long 
practice, based on a law of 1795- 

From these pleadings it appeared that the judg- 
ment of the Senate must involve some answer to 
the following questions : 

I. Is the power of removal in our system in the 



2/8 THE IMPEACHMENT AND 

President alone, or in the President and Senate 
conjointly ? 

2. Does the power of removal include the power 
of indefinite suspension of an officer ? 

3. Can a vacant office be filled indefinitely by 
an ad i7iterim appointee, installed without refer- 
ence to the Senate ? 

4. Most important of all, is it lawful in our sys- 
tem for the President to violate an act of Congress 
which he considers unconstitutional, in order to 
secure a judicial decision as to its validity ? 

But before entering upon an examination of 
these points it is necessary to notice the Senate's 
judgment on the preliminary questions previously 
touched upon : What are impeachable offences 
under the constitution ; and what is the character 
and capacity of the upper branch of the legislat- 
ure when sitting as a court of impeachment ? As 
to the first question, the different theories held 
have already been stated. The managers in the 
pending trial were obliged, on account of the 
article which Butler had forced in, to maintain 
the doctrine that " high crimes and misdemean- 
ors " were not limited to indictable offences ; for 
the public addresses of the President were not of 
a criminal character under any law, either common 
or statute. An impeachable high crime or misde- 
meanor was held by the prosecution to be " one 
in its nature or consequences subversive of some 
fundamental principle of government, or highly 



TRIAL OF PRESIDENT JOHNSON 279 

prejudicial to the public interest." Besides the 
violation of positive law, it might consist in "the 
abuse of discretionary powers from improper mo- 
tives, or for any improper purpose." ^ That this 
was the doctrine of the English law could scarcely 
be doubted.2 The few American precedents up 
to this time pointed unmistakably to the same con- 
clusion. There had been five cases of impeach- 
ment by the House of Representatives. Of these 
one had been against a senator,^ and the Senate 
had decided that the accused did not fall within 
the designation "civil officers of the United States." 
All the rest had involved judges, and in every 
instance the articles exhibited by the House had 
charged some offence not a technical violation of 
law. Two of the impeached persons were con- 
victed.^ Pickering, in 1802, was found guilty, 
among other things, of drunkenness and profanity 
on the bench of his court. Humphreys, in 1861, 
was removed from office on conviction of advocat- 
ing secession in a public speech, and of other acts 
favoring rebellion, when those acts were not crimi- 
nal under any law of the United States. This 
latter case was, for obvious reasons, of little value, 
and especially as no defence was made. But the 

1 Trial, p. 29. 

2 See brief of authorities, by Lawrence, of Ohio, Trial, p. 41- 
8 Blount, of Tenn., 1797. 

4 Chase, Associate Justice of the Supreme Court, was acquitted, 
1805; Peck, a district judge, 1830. 



28o THE IMPEACHMENT AND 

fact remained that the House had on four occasions 
construed its power of impeachment to extend to 
offences not indictable, and in one case had se- 
cured the Senate's ratification of its construction 
by a conviction. 

But it was not alone in precedent that the prose- 
cution had a strong case. Substantial grounds 
were not wanting on which to base the claim that 
a misdemeanor in office was not distinct from mis- 
behavior in office. On any narrower interpreta- 
tion of the term misdemeanor, the constitution 
affords no method by which an insane judge may 
during his lifetime be divested of his official func- 
tions. The fact that the penalty in case of im- 
peachment is limited to disqualification for holding 
office was declared to indicate a purpose rather to 
protect the people from bad officials than to estab- 
lish a jurisdiction for the punishment of crimes. 
It was in the development of this view that Gen- 
eral Butler brought forward the further proposi- 
tion of his school, namely, that the Senate, when 
acting on impeachment cases, was not a court, nor 
its procedure a trial. Such being the case, the 
ordinary restrictions of judicial process, it was 
argued, have no application. The guaranties ac- 
corded to the accused in jury trials need not be 
granted here. There is no right of challenge to 
any member of the Senate for any cause whatever, 
and no appeal to any law save the constitution. 
In short, the body sitting to determine the accusa- 



TRIAL OF PRESIDENT JOHNSON 28 1 

tion against the President was held to be, not a 
court, but the Senate of the United States, " con- 
vened as a constitutional tribunal to inquire into 
and determine whether Andrew Johnson, because 
of malversation in office, is longer fit to retain 
the office of President of the United States, or 
hereafter to hold any office of honor or profit."^ 
A very important deduction from this proposition 
was that the ordinary rules of evidence need not 
be observed, and that each senator in giving judg- 
ment was free to rest his opinion upon any per- 
sonal information he possessed that bore on the 
general question of fitness, without being at all 
confined to the merits of the case made on the 
particular articles. Each senator must be a law 
unto himself, and must give his verdict on his own 
views of what the country's welfare demanded. 

As against this doctrine, the defenders of the 
President pointed out that to adopt these extreme 
conclusions would obviously destroy every vestige 
of judicial character in the Senate's action. A 
presentation of formal articles of impeachment by 
the House would be unnecessary, and the form of 
a trial a work of supererogation. The constitu- 
tion, it was argued, contemplates the substance as 
well as the form of judicial action by the Senate. 
That body is empowered to "try" impeachments. 
It assumes a peculiar character through the oath 
required by the senators when sitting for that 

1 Trial of the President, p. 30- 



282 THE IMPEACHMENT AND 

purpose. Its concurrence in the charges is a 
** conviction," and is followed by a "judgment."^ 
This adherence to the technical terminology of the 
law is significant. The precedents, moreover, it 
was contended, had already, before Mr. Johnson's 
trial, established the reality of the Senate's judicial 
character. This conclusion was sanctioned now by 
a test vote forced by the managers early in the pro- 
ceedings. A question arose as to whether the chief 
justice should decide in the first instance on the 
admissibility of evidence, or refer the matter im- 
mediately to the Senate. It had been argued that 
the Senate's capacity as a court had been fixed by 
the constitutional mandate calling the chief justice 
to preside in the most important case that could 
come before it. The managers maintained that 
the chief justice acted, not as a presiding judge 
and an integral part of the trying body, but only 
as the mouthpiece of the Senate. He could decide 
nothing himself. He was not the chief of a court 
in banc, but the presiding officer of the Senate for 
a particular purpose. Under the constitution the 
Senate of the United States was given the sole 
power to try all impeachments. No one not a 
senator, therefore, could take any part in the trial 
save as the ministerial agent of the Senate. 

After full discussion the question was decided 
by an amendment to the rules which gave the 
chief justice power to decide questions of law, his 

1 Constitution, art. i., sec. 3. 



TRIAL OF PRESIDENT JOHNSON 283 

ruling to stand as the judgment of the Senate 
unless a vote should be demanded by some sena- 
tor. The amendment was adopted by a vote of 
31 to 19.^ On the same day the chief justice had 
occasion to give the casting vote in case of a tie. 
Senator Sumner thereupon offered a resolution 
declaring that such vote was without authority 
under the constitution of the United States. The 
resolution was lost, 21 to 27.^ These votes seem 
conclusive of the Senate's opinion that on this 
occasion, at least, it was sitting in the capacity of 
a court. 

On the question as to what are impeachable 
offences, the whole history of Mr. Johnson's case 
supports the view that, contrary to the prece- 
dents, a violation of some positive law must be 
proved. The House refused once to impeach 
on the speeches. Its later adoption of the article 
based on them was prompted by an apparent defi- 
ance hurled at Congress by the President, and even 
then was determined largely by the plea that the 
inclusion of this article could do no harm even 
if it did no good.^ And finally, no vote was ever 
demanded from the Senate on this article, while the 
tenor of the opinions filed by senators renders it 
doubtful that even a simple majority would have 
voted to convict, much less the two-thirds required. 

1 Trial, p. 63. 

2 Ibid. 

3 See Globe, 2d sess., 40tli Cong., p. 1642. 



284 THE IMPEACHMENT AND 

IV 

Taking up now the questions presented in im- 
mediate connection with the pleadings, the first is 
that as to the power of removal. Summarily, the 
case which the prosecution sought to establish was 
this: I. The removal of the secretary of war with- 
out the advice and consent of the Senate was a 
violation of the Tenure-of-Office Act. 2. Whether 
or not this was true, the removal while the Senate 
was in session, and otherwise than by the appoint- 
ment of a successor, was a violation of the con- 
stitution. 3. These violations of law and consti- 
tution were intentional and were designed as an 
open defiance of Congress. 4. Even if the Presi- 
dent's motive had been merely to get a judicial 
construction of a doubtful constitutional point, as 
he claimed, that fact would have no bearing on 
the determination of his guilt ; for his duty is to 
execute without discretion the legally enacted will 
of the legislature. 

In what organ of the government the constitu- 
tion vested the power to remove an officer from 
his position, is an old and familiar question. Its 
practical discussion began in the halls of the First 
Congress. In providing for the organization of 
the executive departments in 1789 the whole sub- 
ject of removal from office was fully debated. The 
cardinal point of the discussion was the nature of 
the power — whether it was absolute and an inde- 



TRIAL OF PRESIDENT JOHNSON 285 

pendent attribute of the executive office, or whether 
it should be regarded as only to be exercised 
through the clearly defined process of appoint- 
ment. The former opinion prevailed, though by 
a very slender majority.^ A construction was thus 
put upon the constitution by legislative action, and 
that construction was accepted by all. Though the 
debates upon the adoption of the constitution rather 
favored the doctrine which Congress rejected,^ yet 
up to 1867 no successful practical objection had 
been made to the exercise of the power early con- 
ceded to the President. 

The managers endeavored to break the force of 
these facts by developing the theory of a distinction 
between removals during the session of the Senate 
and removals during recess. They admitted that 
the act of 1789 warranted the President in dis- 
missing an unworthy officer peremptorily when the 
impossibility of consulting the Senate prevented 
resort to the ordinary method. The desirability 
of a speedy means by which the service could be 
purged of incompetent or corrupt officials had been 
the chief argument for Congress' action in 1789. 
But this reason had no application when the ad- 
visory body was ready to act on an hour's notice 
in supplanting the objectionable person. It was 
confidently claimed that an examination of the 

1 The bill in which the issue was involved passed the Senate only 
by the casting vote of the Vice-President. 
* See Federalist, No. 77. 



286 THE IMPEACHMENT AND 

records would disclose a uniform recognition of 
this distinction in the practice of the departments. 
A single perfectly defined precedent, however, 
nullified the claim. It was revealed that on the 
13th of May, 1800, Timothy Pickering, Secretary 
of State, was summarily removed by President 
Adams, after having declined to comply with a 
request to resign.^ It is true the nomination of 
his successor was sent in on the same day, but 
the acts appear on the record as entirely separate 
and unconnected. The case bears a striking anal- 
ogy to that of Stanton and it was a strong support 
for the defence. Above all, however, stood the 
fact that in all the discussion of the theoretical 
question no distinction had ever been drawn on 
the basis of the Senate's readiness to act. The 
power of removal had always been treated as 
unsusceptible of qualification in that respect, and 
the only question had been, should it be exercised 
by the President alone, or by the President and 
Senate together. 

Prior to the passage of Tenure-of-Office Act, the 
practice of removal during recess at the will of the 
executive had become not only a notorious fact, 
but a most conspicuous abuse. By the constitu- 
tion, the President was empowered to fill vacancies 
"happening" during the recess of the Senate by 
granting commissions running to the end of the 
next session. As a matter of practice, the temporary 

1 Trial, pp. 117-119. 



TRIAL OF PRESIDENT JOHNSON 287 

appointee was regularly nominated and confirmed 
when the Senate met, and no questions were asked 
about how the vacancy " happened." ^ By the act 
of 1867 Congress wholly reversed the conclusion 
reached in 1789, and borne out in the later practice. 
The power of removal, as an independent right, 
was annihilated. Every officer appointed by the 
advice and consent of the Senate was declared 
entitled to hold the office till the Senate had agreed 
to his removal by advising and consenting to the 
appointment of his successor. This, of course, 
withdrew removal from the category of causes 
through which a vacancy could "happen" during 
the recess of the Senate. For the sake of disci- 
pline, however, the President was authorized, in case 
of misconduct, crime, incapacity or legal disquali- 
fication, to suspend an officer, and designate some 
one to perform his duties till the Senate should 
act on the case. A full report on the subject must 
be made to the Senate within twenty days of its 
next meeting. If that body agreed that the cause 
for suspension was sufficient, the officer might 
be removed; if it did not concur, the officer 
should forthwith resume the functions of his 
office.2 It was by virtue of these provisions that 
Stanton was now held to be regularly in authority 
as secretary of war. 

1 A futile attempt was made to reform this practice as early as 
1826. Benton, Thirty- Years' View, ch. xxix. 

2 Tenure-of-Office Act, sec. 2. 



288 THE IMPEACHMENT AND 

Assuming for the present that Stanton was not 
excepted from the operation of this law by a pro- 
viso to be noticed later, Johnson's attitude with 
reference to the act was certainly one of defiance. 
But the defiance was hurled from the higher 
ground of a constitutional mandate. The Presi- 
dent claimed that his power to remove at pleasure 
was derived from the constitution, and was, there- 
fore, as far beyond the range of legislative restric- 
tion as, for example, the right to grant pardons. 
For, wherever the organic law had placed the 
power of removal, it was certainly not in Congress. 
The act of 1789 did not confer the right on the 
President; for Congress never had the right to 
confer. That act had by its terms merely recog- 
nized that the power of removal had been vested 
in the executive by the same authority which had 
vested other powers in Congress — namely, the 
constitution.^ This view had been adopted by 
commentators and by all departments of the gov- 
ernment, and had served as a working principle of 
our polity for seventy-eight years. Such concur- 
rence of all authorities of weight in our system had 
clothed an implied function of the executive with 
all the sanctity of an expressly granted power. 
The Tenure-of-Office Act was therefore void, and 
its execution could not be a duty of the President. 

Against this argument the managers maintained 

1 Annals of Congress, 1st Cong., pp. 600-608. See especially 
Benson's remarks. 



TRIAL OF PRESIDENT JOHNSON 289 

that the Congressional construction of 1867 was 
as good as that of 1789. The constitution was 
unchanged in respect to the power of removal. 
Wherever the right was seventy-eight years ago, 
it still continued to be. If the legislature's view 
of its location was conclusive upon the other de- 
partments then, so must the later opinion be now. 
The earlier position had been taken mainly with 
reference to the exalted character of the first 
President, and the confidence everywhere reposed 
in him. Experience had proved that the principle 
thus apparently sanctioned was hostile to the true 
interests of the nation. In the hands of bad men, 
the power of removal had been used to exalt 
unduly the executive at the expense of the other 
departments. It was the duty of the people's 
immediate representatives in Congress to correct a 
pardonable error of the fathers, and to preserve 
the system from degenerating into a despotism. 
In pursuance of this duty, and under the authority 
conferred by the constitution to make all laws 
necessary and proper for carrying into execution 
the powers vested in the government and its 
officers. Congress had passed the Tenure-of-Office 
Act. Further, it was argued, by enacting the law. 
Congress had expressed its opinion on the question 
of constitutionality. By a two-thirds majority in 
each house overriding a veto supported by all 
the arguments at the President's command, a con- 
clusive emphasis had been put upon that opinion. 



290 THE IMPEACHMENT AND 

If any doubt still remained as to the constitution- 
ality of the act, it surely was not for the President 
to resolve it. By neither constitution, nor law, 
nor practice had the executive been endowed with 
authority to declare a law void on any ground. 
His duty was faithfully to execute the laws. 
What must be considered laws } A bill passed by 
both houses and signed by the President is a law. 
Or when the President has sent back a bill with 
objections, and both houses have passed it again, 
and by two-thirds in each case, the constitution 
declares that "it shall become a law." Such a 
law must be faithfully executed, or the President 
fails in his duty. On no pretence can he refuse 
compliance with the constitutionally expressed will 
of the legislature. 

At this point was focussed the whole issue be- 
tween the two political departments. Here Con- 
gress concentrated its heaviest fire, and sought to 
crush once for all the independence of the execu- 
tive. If Andrew Johnson had been convicted on 
a direct presentation of the question here raised, 
the co-ordination of the departments in the Ameri- 
can system would have been a thing of the past ; 
and, on the other hand, if an acquittal had been 
secured on the same issue, the natural vantage- 
ground occupied by the legislature under the con- 
stitution would have been thenceforth held by the 
executive. Divested of all qualifications, the bare 
question was : Could the President, for any pur- 



TRIAL OF PRESIDENT JOHNSON 291 

pose, decline to execute or deliberately violate a 
law duly enacted under the forms prescribed by 
the constitution ? If he could, his will, and not 
that of the legislature, would be the law; if he 
could not, he would be only the ministerial agent 
of Congress, and not the chief of a co-ordinate 
department.^ 

If it be held that the President has the unquali- 
fied right to violate an act of Congress at his will, 
the absurdity is obvious, as was practically con- 
ceded by the defence. If, on the other hand, he 
be denied the right to do it under any circum- 
stances, what, they asked, is to be considered his 
duty in case, for example. Congress forbids him to 
negotiate a treaty, or to grant a pardon, or to act 
as commander-in-chief of the army } These powers 
are conferred upon the President in unmistakable 
terms by the constitution. For their exercise he 
is responsible not to Congress, but to the makers 
of the constitution, that is, the people. An act of 
Congress that deprives him of these rights, he 
certainly is not bound to obey. Again, there are 
powers which are clearly placed in other hands by 
the constitution. Laws for the carrying out of 
such powers he is bound to execute without ques- 

1 Bingham, especially, in closing the argument for the prosecu- 
tion, labored to make the verdict depend on the bare question 
whether the President could interpret judicially the acts of Congress. 
His appeal to Senatorial esprit de corps was very thin?y disguised. 
Trial, p. 385. 



292 THE IMPEACHMENT AND 

tion ; any violation of rights by such laws can only 
be remedied by repeal of the laws or by resort by 
the aggrieved parties to the protection of judicial 
interpretation. But suppose Congress assumes 
the exercise of a doubtful power, — a power which 
certain precedent and respectable authority concur 
in attributing to the executive ? Such assumption 
is considered to violate a constitutional right of the 
President. He is not warranted in simply resist- 
ing the law, decreeing it to be unconstitutional ; 
for that would be arrogating to himself the func- 
tions of the judiciary. But there is no good reason 
why he should not take steps toward securing an 
opinion on the act from the third department of 
the government. The Supreme Court, however, 
can give no decision, save on a special case 
brought before it. Such case could never be 
made up by the President, save by a technical 
violation of the doubtful law. For the purpose, 
then, of defending his right through the courts of 
law, and for this purpose alone, the preservation 
of the constitution warrants the executive in trans- 
gressing duly enacted legislation. " But," replied 
the managers, *'the President, like any private 
citizen, if he violates law, for whatever purpose, 
does it at his peril. The peril in his case is im- 
peachment. Hence Mr. Johnson is rightly pre- 
sented." This the defence could not deny. If 
the violation of the law were a high crime or mis- 
demeanor, the House might bring the offender 



TRIAL OF PRESIDENT JOHNSON 293 

before the Senate for trial. But the gravamen 
of the charge in that case would have to be not 
the act only, but the motive of the President. If 
it were proved that his intention was not merely 
to secure a judicial decision on his alleged right, 
but to inaugurate revolutionary resistance to Con- 
gress, then conviction must follow. This view, 
however, the managers rejected altogether, and 
demanded that Mr. Johnson's motive, though with- 
out doubt an impeachably bad one, must not at all 
be considered. They called upon the Senate to 
remove the officer who had deliberately violated 
a solemn law. Nor did they heed the suggestion 
that if this alleged solemn law was in conflict with 
the constitution, it was no law at all.^ 

The vital principle of our constitution involved 
in this question could not be brought to a direct 
issue in the present case on account of a special 
doubt that arose as to whether the leading pro- 
vision of the Tenure-of-Office Act applied to Sec- 
retary Stanton. At least two of the Republican 
senators who voted for conviction on the other 
articles, expressed their inability to resolve this 
doubt in such a way as to sustain the charge that 
the removal of the secretary had violated that 
law.2 The first section of the act, after declaring 
that every civil officer appointed with the consent 

1 Cf. Bingham's argument, Trial, p. 387. 

2 Sherman and Howe; see their opinions in Trial, pp. 449 and 
496. 



294 THE IMPEACHMENT AND 

of the Senate should be entitled to hold his office 
until a successor should have been in like manner 
appointed, contained this proviso : 

Provided^ That the secretaries of state, of the treasury-, 
of war, of the navy, and of the interior, the postmaster- 
general, and the attorney-general shall hold their offices 
respectively for and during the term of the President by 
whom they may have been appointed, and for one month 
thereafter, subject to removal by and with the advice apd 
consent of the Senate. \ 

It was part of the bill's history that the subject 
of the cabinet officers had been a point of conten- 
tion between the Senate and the House. By de- 
cisive votes the former had insisted on excepting 
these officials entirely from the operation of the 
law. The House, on the other hand, had desired 
to avoid all concession to the cabinet idea, and to 
make no distinction between the President's advis- 
ers and other civil officers. A conference com- 
mittee had reported the section as it stood, with 
the disputed topic thrown into the proviso by way 
of compromise. The question had been raised at 
the time whether the proviso iixed Johnson's sec- 
retaries in their positions irrespective of his wish, 
and Sherman, a Senate conferee, had distinctly de- 
nied that such was the case.^ It was Mr. Johnson's 
belief, moreover, that when considering the bill in 
cabinet meeting, he had been supported by all his 

1 Globe, 2d sess., 39th Cong., p. 15 16. 



TRIAL OF PRESIDENT JOHNSON 295 

advisers, including Stanton himself, in the opinion 
that the law did not affect their tenure.^ These 
facts, however, could not be conclusive of the con- 
struction of the law, and the question had to be 
argued from the terms of the statute. 

It was declared that the secretary of war should 
hold his office for and during the term of the 
President by whom he was appointed. Mr. Stan- 
ton's commission bore the date January 11, 1862, 
and was signed by President Lincoln. In common 
with Messrs. Seward, McCullough and Welles, 
he had continued without specific reappointment 
either by Lincoln, after his second inauguration, 
or by Johnson. The question presented, then, was 
whether they were still serving in the term of 
President Lincoln. A vast amount of metaphysi- 
cal subtlety was expended on the solution of this 
problem so far as it involved the definition of the 
word *'term." It was pretty generally agreed, in 
the first place, that a Presidential term ended and 
a new one began on the fourth day of March, in 
every fourth year after 1789. The Vice-President 
is chosen for the same term as the President. 
Was Johnson then serving in his own term or in 
that of Lincoln } As far as the mere time was 
concerned, apparently in both. But the crucial 
query was as to whether the words "term of the 
President by whom appointed" referred to the 
time for which a man was chosen President, or 

1 Johnson's message to the Senate, Dec. 12, 1867; Trial, p. 20. 



296 THE IMPEACHMENT AND 

the time during which he actually filled the office. 
In other words, whether the essence of the expres- 
sion which fixed the cabinet's term, was in the 
office of President, or in the man who filled it? 
If the former, Stanton was entitled to hold on till 
April 5, 1869; if the latter, he had no claim to his 
office.^ 

The best method of determining the disputed 
point was to look at the intendment of the proviso. 
The managers held that it was designed merely to 
enable each President, on assuming office, to get 
rid of his predecessor's cabinet. If a President 
was re-elected, as Lincoln had been, the tenure of 
his cabinet officers was not interrupted. **Term 
of the President," they argued, meant the whole 
time during which the same individual was as- 
signed to the office. Stanton, therefore, having 
been appointed by Lincoln, was entitled to his 
office for the whole time for which Lincoln was 
chosen, and one month more. Johnson had no 
term as President. He merely exercised the duties 
of President in the term for which he was chosen 
Vice-President. As against this argument of the 
managers the defence held that the intent of the 
act was to give each President a chance to choose 
once his constitutional advisers. Johnson was 

1 For a bit of verbal analysis that would do credit to a mediaeval 
dialectician, see Edmunds' opinion, Trial, p. 426. The learned 
senator deduces his conclusions chiefly from a construction put 
upon the word " of." 



TRIAL OF PRESIDENT JOHNSON 297 

President. It was now too late to hold that he 
was only acting-President ; Tyler's course had set- 
tled that point. Such being the case, Stanton's 
term had expired in May, 1865; and the office 
of secretary of war never having been filled by 
Johnson, he had the right under the plain meaning 
of the law to get rid of his predecessor's appointee 
and secure one to his liking. 

This proviso was in fact one of those cases so 
common in the history of our legislation, where, 
upon vital disagreement between the houses, a 
conference committee has finally reported a com- 
promise that can be construed to satisfy either of 
the conflicting interests. It is sufficient to observe 
here that the doubts raised about this clause pre- 
vented a direct issue on the much more important 
constitutional question. Even those who held 
Johnson guilty in other respects, could scarcely 
vote to remove him from office for the mere adop- 
tion of a possible interpretation of so uncertain an 
expression as that of the proviso. 

After the charge of unlawful removal, and the 
accusations incidental thereto, the next high mis- 
demeanor alleged against the President was the 
authorization given to Thomas to act as secretary 
of war ad interim. This was assailed as a viola- 
tion of the constitution and of the laws and also as 
done without authority of law. 

The practice of temporary appointments to 
offices made vacant by unexpected contingencies 



298 THE IMPEACHMENT AND 

was a long-established one, and had been made the 
subject of regulation by law on three different occa- 
sions prior to the passage of the Tenure-of-Office 
Act. It is not important to follow the discussions 
on the legal questions involved in the interpreta- 
tion of these laws.^ The only constitutional ques- 
tion that arose was, whether the executive had 
power to evade the advisory right of the Senate 
by repeated ad i7iterim appointments. Mr. John- 
son did not claim that power. His designation of 
Thomas was, indeed, without limitation as to time ; 
but the nomination of Thomas Ewing, Sr., of Ohio, 
as secretary of war, had been sent in to the Sen- 
ate on the next day after Stanton's removal. The 
intention to evade the constitutional requirement 

1 The whole case from the President's standpoint, both as to the 
law and the practice, is summed up in a message of Buchanan to 
the Senate, of January 15, 1861. It was in reply to a request for 
information in regard to the appointment of an ad interim secre- 
tary of war in place of Floyd, resigned. The message was accom- 
panied by a list of appointments showing the practice in the matter. 
This whole document was put in evidence by counsel for Mr. John- 
son. Trial, p. 191. Subsequently to the action of Mr. Buchanan 
a new law had been enacted in reference to the matter, and the 
main point in discussion was whether this later act repealed the 
previous legislation. See 12 Statutes at Large, p. 656. It was 
here enacted that in case of death, resignation, absence from the 
seat of government, or sickness, of certain officers, including heads 
of departments, the President might authorize any other corre- 
sponding officer of either of the departments to perform the duties 
of the office, but for not more than six months. The defence 
held that this did not apply to vacancies caused by removal. See 
also I Statutes at Large, p. 415. 



TRIAL OF PRESIDENT JOHNSON 299 

was thus made very doubtful, to say the least. A 
point strongly pressed by the managers was that 
the President ought not to be permitted to make 
ad interim appointments while the Senate was in 
session, to fill vacancies created by his own action. 
The records reveal few precedents of this sort, and 
it is undeniably a convenient path to usurpation. 
The laws regulating ad interim appointments say 
nothing as to whether or not the Senate may be 
in session at the time the vacancy occurs ; but in 
specifying the causes by which temporary vacan- 
cies are produced, reference is made only to death, 
resignation, absence from the seat of government, 
or sickness — that is, to contingencies not under 
the control of the President; and by act of 1863, 
the ad interim appointment is limited to a period 
of six months. It is obvious that these limitations 
are well founded, and that the spirit of the legisla- 
tion, as well as of the constitution, is opposed to 
Mr. Johnson's claim that the power of removal 
included the power of indefinite suspension. 



V 

The trial proper was terminated, with Manager 
Bingham's argument, on the 6th of May. It had 
become evident by that time that the legal case of 
the prosecution had not the strength it was at first 
supposed to have. Serious indications of disaffec- 
tion had appeared in the Republican ranks. The 



300 THE IMPEACHMENT AND 

radical majority determined to pass over the doubt- 
ful charges and get a vote first on those which 
were most likely to be successful. Careful con- 
sideration convinced them that the last article in 
order, the eleventh, promised a result the most sat- 
isfactory to the prosecution. As has been stated 
above, the gravamen of the charge in this article 
was an attempt to defeat the execution of the 
Tenure-of-Office Act. But the essence of the 
attempt was alleged to consist in either the re- 
moval of Stanton or the appointment of Thomas, 
or in both together. The article, moreover, was 
so framed as to allege the President's opposition 
to military reconstruction as incidental to the 
attempt charged. Such an article might reason- 
ably be expected to secure the greatest vote for 
conviction. It was therefore brought up for ac- 
tion first. Amid the most intense excitement the 
vote was taken May i6th. The result was: guilty, 
35; not guilty, 19. Seven regular Republicans^ 
stood with the twelve opposition senators for ac- 
quittal. The opinions filed by these seven leave no 
room for doubt that the danger which threatened 
the balance of the constitutional system was the 
motive which most largely influenced their verdict. 

Once set the example [said Trumbull] of impeaching a 
President for what, when the excitement of the hour shall 

1 These Republicans were Fessenden, Fowler, Grimes, Hender- 
son, Ross, Trumbull and Van Winkle. 



TRIAL OF PRESIDENT JOHNSON 301 

have subsided, will be regarded as insufficient causes . . . 
and no future President will be safe who happens to differ 
with a majority of the House and two thirds of the Senate on 
any measure deemed by them important, particularly if of a 
political character. Blinded by partisan zeal, with such an 
example before them, they will not scruple to remove out of 
the way any obstacle to the accomplishment of their pur- 
poses, and what then becomes of the checks and balances 
of the constitution, so carefully devised, and so vital to its 
perpetuity ? ^ 

The radicals were greatly chagrined at this ver- 
dict, especially as they had come within a single 
vote of success in their purpose. A recess of ten 
days was taken, during which vigorous but not 
very hopeful efforts were made to overcome the 
scruples of the Republican dissidents. The second 
and third articles, concerning the appointment of 
Thomas, were the only ones left that gave the 
slightest hope of success. The legal case on 
these, especially the latter, was considered to be 
very strong. On the 26th of May the vote was 
taken, but with the same result as before. It was 
clear that the plan to oust the President had failed. 

After the announcement of this vote, the Senate, 
sitting as a court of impeachment for the trial of 
Andrew Johnson, adjourned sine die. On the same 
day, Mr. Stanton addressed to the President a note 
in these terms : 

Sir : — The resolution of the Senate of the United States, 
of the 2 1 St of February last, declaring that the President '' has 
1 Trial, p. 420. 



302 THE IMPEACHMENT AND 

no power to remove the secretary of war and designate any 
other officer to perform the duties of that office ad interim^"^ 
having this day failed to be supported by two thirds of the 
senators present and voting on the articles of impeachment 
preferred against you by the House of Representatives, I have 
relinquished charge of the War Department, and have left the 
same, and the books, archives, papers and property, hereto- 
fore in my custody as secretary of war, in care of Brevet 
Major-General Townsend, the senior assistant adjutant- 
general, subject to your direction. 

(Signed) Edwin M. Stanton, 

Secretary of War. 

The President having meanwhile nominated 
General Schofield as secretary of war, "in place 
of Edwin M. Stanton, removed," the Senate, on 
May 29th, passed a resolution confirming the 
appointment, but preceded by a preamble declar- 
ing that Stanton had not been legally removed 
from his office, but had " relinquished his place 
as . secretary of war for causes stated in his note 
to the President." With this final shot, the crisis 
of the conflict between Johnson and the radical 
Congress ended. The radicals retired, and the 
President was left in possession of the field. 

As a mere matter of partisan politics, it is now 
generally conceded that the impeachment was a 
mistake. In the view of constitutional history, 
the impeachment must be considered as marking 
the utmost limit of the sharp reaction which fol- 
lowed the sudden and enormous concentration of 
power in the executive department during the 



TRIAL OF PRESIDENT JOHNSON 303 

Stress of arms. Since 1868 the progress toward 
the normal equilibrium of forces has been con- 
stant. With the accession of President Grant, in 
1869, the most offensive clauses of the Tenure-of- 
Office Act were repealed. Twenty years later, the 
whole act, having become practically obsolete, was 
struck from the statute-book almost without oppo- 
sition. The single vote by which Andrew John- 
son escaped conviction marks the narrow margin ^ 
by which the Presidential element in our system 
escaped destruction. It is highly improbable that 
circumstances so favorable to the removal of a 
President on political grounds will again arise. 
For better or for worse, the co-ordinate position 
of the executive has become a permanent feature 
of the constitution. 

'^ The margin was not in fact quite so narrow as it appeared. 
Two senators who actually voted "guilty" had pledged themselves 
to vote " not guilty " in case such vote should be indispensable to 
acquittal. 



ARE THE STATES EQUAL UNDER THE 
CONSTITUTION ? 

In respect to the question of ultimate political 
supremacy under the constitution of the United 
States, the result of the Civil War gave an answer 
that was decisive. No argument based in any 
particular upon the principle of state-sovereignty 
can ever again be tolerated in the arena of con- 
stitutional debate. Our fundamental law must 
always henceforth be viewed as the expression of 
a nation's will. There is abundant room for dif- 
ference of opinion as to the extent of the authority 
that is entrusted to the government by the people; 
there is food for endless controversy in the distri- 
bution of powers among the many governmental 
organizations, and among the various departments 
of each ; but the right of any particular community 
to maintain its own idea on either of these points 
against the contrary assertion of the organ of the 
whole people will never again call for recognition. 
The conviction in the South that the state had 
absolute rights as against the nation was well 
known to be the basis of the secession movement 
and the source of the country's woes. PubHc 

304 



ARE THE STATES EQUAL? 305 

opinion in the victorious section demanded as 
the first fruit of its triumph the annihilation of 
every principle upon which the pernicious dogma 
could possibly find support. Hence the sweep- 
ing invasion by national legislation of the region 
hitherto deemed sacred to state rights. Hence the 
culminating doctrine that resistance to the will of 
the nation instantly divests the state of all rights 
whatever. 

In the circumstances of the time it was a very 
easy matter to legislate away what had been 
claimed to be rights of the states. To provide for 
the permanence of the legislation required care. 
The last three amendments to the constitution, 
especially the fourteenth, make a number of ex- 
tremely important powers irrecoverable. Besides 
these, the precedents of the mere legislation 
oppose a substantial barrier to any future demon- 
stration against the central stronghold. Among 
the less prominent features of this barrier was the 
series of acts which has suggested the subject of 
this paper. Between the outbreak of the war and 
the close of the reconstruction two new states 
were admitted to the Union, and eleven of the old 
states were restored to the constitutional relations 
which were broken off by secession. In both the 
acts admitting the new states and those restoring 
the old, the operation of the laws was made con- 
tingent upon the acceptance by the states of cer- 
tain fundamental conditions. The mere fact of 



306 ARE THE STATES EQUAL 

conditions in an act of admission was no novelty ; 
the content, however, of those under consideration 
was in a large measure unprecedented, and was 
wholly significant of the times. In the discussion 
of the matter, the ancient dogma that all the states 
of the Union are constitutionally endowed with 
precisely equal powers was subjected to a careful 
examination in the light of the modern conceptions 
of our system. Under the influence of the state- 
sovereignty theory, the principle had been gener- 
ally considered axiomatic. But now, like so many 
other monuments of the ante-bellicm system, it 
was boldly attacked and was threatened with utter 
demolition. 

It is the purpose of this paper to determine not 
so much whether the states ought to be equal in 
powers, but whether, as a matter of fact, they are 
equal, under the authoritative construction up to 
date of the constitution and the laws. The method 
adopted will be, first, to examine historically the pro- 
cess of admitting states to the Union, and, second, 
to discuss the bearing of the process upon the rela- 
tions of the states to the general government. 



The germ of the doctrine of equal states and 
the model for all the pertinent provisions of ante- 
bellum legislation in admitting new members to 
the Union are found in the various acts by which 



UNDER THE CONSTITUTION? 307 

the United States, under the Articles of Confed- 
eration, acquired dominion and established govern- 
ment in the great region between the Alleghanies 
and the Mississippi. In 1784 Virginia executed 
the deed of cession by which all her claim to 
lands northwest of the Ohio River was trans- 
ferred to the United States.^ The cession, how- 
ever, was conditional. It was stipulated that the 
ceded region should be laid out and formed into 
states, and that the states so formed should be dis- 
tinct republican states, and should be "admitted as 
members of the Federal Union, having the same 
rights of sovereignty, freedom and independence 
as the other states." Other stipulations also were 
inserted, looking to the security of certain land- 
grants previously made by Virginia, and all were 
formally accepted by the Congress. The latter 
body had indeed willingly offered the pledge to 
form the territory into equal states as an induce- 
ment to the states to make the much desired 
cessions.2 It thus appears that the principle of 
equality between the original and the newer states 
finds its first expression as an indispensable pre- 
requisite to an enormous increase of the central 
government's dignity and power. 

Shortly after the cession of the territory north- 
west of the Ohio, the Congress provided by reso- 
lution for its government. This act of 1784 was 

1 Poore, Federal and State Constitutions, I, 427-8. 

2 Story, Commentaries, sec. 131 6. 



308 ARE THE STATES EQUAL 

the immediate predecessor of the more famous 
ordinance passed three years later. Its provi- 
sions are of interest as embodying certain forms 
of compact which have appeared in almost every 
act of admission up to the present day. After 
a description of the process by which the new 
states to be formed in the territory should be- 
come full-fledged members of the Union, a series 
of clauses was recited which were to stand as a 
compact between the United States and each of 
the new states, unalterable except by common 
consent. These clauses provided that the states 
should forever remain a part of the Confederacy, 
that they should in no case interfere with the dis- 
posal of the soil by Congress, that they should 
impose no tax upon lands owned by the United 
States, that their governments should be republi- 
can, and that the lands of non-resident proprietors 
should not be taxed higher than those of resi- 
dents before the state's delegates should be ad- 
mitted to vote in Congress.^ When this law was 
superseded by the Ordinance of 1787, the same 
provisions were included in the " articles of com- 
pact between the original states and the people 
and states in the said territory." They consti- 
tuted, however, only a small proportion of the 
terms in the new instrument. Among the addi- 
tional clauses of interest to our investigation were 
these : no person shall be molested on account of 

^ Curtis, History of the Constitution, vol. i, p. 297. 



UNDER THE CONSTITUTION? 



309 



his mode of worship or reHgious sentiments ; 
navigable rivers must remain free pubUc high- 
ways ; whenever any of the states to be formed 
shall have 60,000 inhabitants, " such state shall be 
admitted by its delegates into the Congress of the 
United States on an equal footing with the origi- 
nal states in all respects whatever" ;^ and finally, 
the celebrated anti-slavery clause which had been 
voted down in 1784.2 

The Ordinance of 1787 contains substantially 
every provision that is to be found, by way of 
compact or fundamental condition, in any act of 
admission prior to the Civil War. On it were 
based the forms of cession and government by 
which the lands west of Georgia and North Caro- 
lina became territories of the United States. 
There was room for serious doubt as to the power 
of the old Congress to guarantee the admission of 
new states on equal terms with the old. Madison 
regarded the promise in the Ordinance of 1787 as 
wholly unauthorized by the Articles of Confedera- 
tion.^ But a new condition of affairs was brought 
about by the adoption of the constitution of 1787, 
and the re-enactment of the territorial ordinance 
by the new Congress in 1789. There was no 

1 Poore, Constitutions, I, 432. 

2 " There shall be neither slavery nor involuntary servitude in 
the said territory, otherwise than in the punishment of crimes, 
whereof the party shall have been duly convicted." 

« Federalist, No. 38, end. 



310 ARE THE STATES EQUAL 

doubt whatever of the power of Congress under 
the constitution to admit states on an equal foot- 
ing with the original thirteen. The uncertainty 
now was as to whether the new-comers could 
enter on any other terms. The debates in the 
convention revealed considerable soreness among 
many politicians of the Northern and Eastern 
states at the prospect of the overwhelming weight 
of the South and West when the new states 
should be well settled. Manifestations of this 
feeling were frequent during the long struggle 
over the adjustment of representation.^ Gouver- 
neur Morris was the most outspoken in hostility 
to the equality of the new members of the Union. 
Having failed in an effort to discriminate against 
them in the matter of representation, he was more 
successful when the clause in reference to the 
admission of new states came up for discussion. 
As reported from the committee of detail, this 
clause provided that such states should be ad- 
mitted by a two-thirds vote of Congress. Only in 
reference to those arising within the boundaries 
of any of the old states was it declared that they 
should be admitted on the same terms with the 
original thirteen. All others were, by implica- 
tion, subject to the discretion of the legislature. 
Morris, however, objected to limiting this discre- 
tion in any way, and on his motion the distinction 
was stricken out and the clause was remodelled 

1 Bancroft, History of the Constitution, II, pp. 84, 85, et passim. 



UNDER THE CONSTITUTION? 



311 



in its present form: "New states may be ad- 
mitted by Congress into this Union." i So far 
as the intention of this clause is concerned, there- 
fore, there seems to be no reason to assert that 
the constitution forbids inequality. Let us now 
review the practice and precedents in the further 
growth of the nation. 

Vermont was the first new state to enter the 
Union. Her admission had been contemplated 
by the framers of the constitution, and the final 
form of the clause in reference to new states 
within the jurisdiction of the old had been deter- 
mined with a view to her quarrel with New York.^ 
Congress' act of admission consisted of a simple 
statement that Vermont should be a member of 
the Union. The same simplicity characterized 
the entrance of Kentucky. This state originally 
formed the western half of Virginia. Virginia 
agreed to the separation of the territory on cer- 
tain conditions, which were to be accepted by 
the latter and by the United States. The act 
of admission simply recognized the new state. 
Tennessee was the next to enter the Union. The 
act of cession by North Carolina contained about 
the same stipulations as the instrument by which 
the Northwest Territory was granted by Virginia. 
The act of admission presented for the first time 
in a Congressional enactment the formula: "On 

1 Elliot's Debates (Lippincott, 1876), V, p. 493. 

2 Curtis, Hist, of the Const., vol. ii, p. 353. 



312 ARE THE STATES EQUAL 

an equal footing with the original states in all re- 
spects whatever."^ This clause occurs in either 
the enabling act or the act of admission of every 
state subsequently admitted. 

The first state formed from the Northwest Ter- 
ritory was Ohio, in 1802. She was also the first 
to pass from the territorial form under the direc- 
tion of an enabling act. This act has been the 
model for all succeeding legislation of the kind, 
and in it may be found provisions that have since 
furnished a basis for the claim of Congress' right 
to exact conditions of an applicant for admission. 
By it the inhabitants of the territory included in 
certain designated boundaries were authorized to 
form a constitution which must be republican and 
not repugnant to the Ordinance of 1787. These 
two requirements were designed to fulfil the duty 
of the United States, first to the constitution, in 
guaranteeing a republican form of government, and 
second, to Virginia, in carrying out the terms of 
the act of cession, as embodied in the Ordinance 
of 1787. The enabling act then offered to the 
state's convention, for its free acceptance or re- 
jection, three propositions : first, to grant to the 
state certain lands for the support of schools ; 
second, to grant to the state the salt-springs and 
sufficient adjacent land to work them ; and third, 
to apply to the building of roads and canals for 
the benefit of the state five per cent of the pro- 

1 Poore, Constitutions, II, 1677. 



UNDER THE CONSTITUTION? 313 

ceeds of public lands sold within the state. These 
propositions, if accepted, were to be binding upon 
the United States, provided that the acceptance 
should be accompanied by an ordinance, irrevo- 
cable without the consent of the United States, 
declaring that lands sold by Congress should be 
exempt from taxation for a period of five years 
after the sale. The convention accepted the prop- 
ositions and the required ordinance was duly 
enacted. 

In 181 2, Louisiana became a state. The ena- 
bling act in this case laid down a large number of 
requirements to which the constitution of the new 
state must conform. These were based mainly 
on the Ordinance of 1787, and were obviously 
designed to counteract any foreign influences that 
might have taken root while the territory was 
under European dominion. No terms were offered 
to Louisiana as to Ohio, But an irrevocable ordi- 
nance was demanded, which should bind the state 
to substantially the same stipulations that were 
contained in the Ordinance of 1787 in respect to 
unappropriated lands and navigable waters, as well 
as to the five-year exemption from taxation of 
public lands sold by the United States. There is 
no equivalent whatever offered in return for these 
demands, and the peremptory character of Con- 
gress' dealing with the state is revealed still more 
distinctly in the act of admission. For some reason, 
the irrevocable ordinance which the Louisiana con- 



314 ^^E THE STATES EQUAL 

vention adopted omitted the declaration that the 
Mississippi and other navigable rivers should be free 
from tax or toll. Congress, therefore, made that 
declaration a proviso of the state's admission, and 
clinched it with these words : " The above condi- 
tion, and also all other the terms and conditions 
contained in the third section of [the enabling act] 
shall be considered, deemed and taken fundamental 
conditions and terms upon which the said state is 
incorporated in the Union." ^ Such language might 
be thought fatal to the claim of equality among the 
states, were it not that, in the same section, the act 
declares Louisiana admitted "on an equal footing 
with the original states in all respects whatever." 
The legislator could have joined these two provi- 
sions only on the understanding that all the origi- 
nal states labored under the same restrictions that 
were imposed upon Louisiana. 

No new principle appeared in the admission of 
the next five states. The familiar irrevocable or- 
dinance was a feature of each case, except that of 
Maine. Indiana, Illinois and Alabama received an 
equivalent for their concessions, like Ohio ; Mis- 
sissippi followed Louisiana in granting the ordi- 
nance absolutely. Maine came in with the consent 
of Massachusetts, and with no provision further 
than that of equality with the original states. 

The admission of Missouri suggests immedi- 
ately the ominous struggle over slavery restriction. 

1 Poore, Constitutions, p. 710. 



UNDER THE CONSTITUTION? 



315 



Tallmadge's famous motion ^ was to impose as an 
absolute condition upon Missouri's existence the 
identical proposition which had, in the states formed 
in the Northwest Territory, assumed the form of a 
compact. Without stopping at this point to ex- 
amine the line of argument adopted by the friends 
of slavery, it is sufficient to remark that the strenu- 
ous denial of any power in Congress to withhold 
from a new state a right possessed by the original 
members of the Union was the position which 
proved most troublesome to the restrictionists. 
Only the boldest spirits ventured to combat the 
proposition that the nature of the Union demanded 
perfect equality among its members. The great 
struggle occurred over the enabling act. Outside 
of the clause which embodied the celebrated com- 
promise, this act was substantially the same as 
its immediate predecessors. The resolution ad- 
mitting the state, however, presented another case 
of absolute condition. It declared that 

Missouri shall be admitted into this Union on an equal footing 
■with the original states in all respects whatever, upon the 
fundamental condition, that the fourth clause of the 26th sec- 
tion of the third article of the constitution submitted on the 

1 To amend the bill for admission by adding this clause : " Pro- 
vided, That the further introduction of slavery or involuntary servi- 
tude be prohibited, except for the punishment of crimes, whereof 
the party shall have been duly convicted; and that all children 
born within the said state, after the admission thereof to the 
Union, shall be free at the age of twenty-five years." 



3l6 ARE THE STATES EQUAL 

part of said state to Congress, shall never be construed to 
authorize the passage of any law 

that shall conflict, in short, with the inter-state 
rights of citizens as provided for by the constitu- 
tion of the United States.^ And the assent of 
the legislature of the state to this condition was 
demanded and was duly given. 

Arkansas organized a state government without 
waiting for an enabling act. Congress admitted 
her, upon the express condition that the people of 
the state should not interfere with the primary dis- 
posal of the public lands, nor tax them while United 
States property. This proceeding, however, was 
evidently unsatisfactory ; for a supplementary act 
was passed in which these same conditions were 
made, with others, the equivalents for the custom- 
ary land grants for education and other public pur- 
poses, and were put in the form of an irrevocable 
ordinance.^ The difficulty between Ohio and 
Michigan about their dividing boundary ^ accounts 
for the express condition in the act admitting the 
latter that her boundaries shall be as described in 
the act. Iowa was admitted on the fundamental 
condition that the assent of the township electors 
should be given to the act of admission. From 
this time (1846) to the admission of Nevada, in 1864, 

1 3 Statutes at Large, 645. 

2 Poore, Constitutions, I, 118. 

* Michigan, by Judge Cooley, in American Commonwealths 
series, p. 214 <•/ seq. 



UNDER THE CONSTITUTION? 317 

the legislation of Congress reveals no novelty 
pertinent to our subject. Every clause of both 
enabling acts and acts of admission is a copy 
of some one of those that have been noticed. 

Nevada entered the Union to the accompa- 
niment of Grant's guns on the Potomac and 
Sherman's on the Chattahoochee. It would be 
strange if no mark of those fateful times appeared 
impressed upon her. In the enabling act, we 
discover that her constitution was required to 
harmonize not only with the constitution of the 
United States, but also with the principles of the 
Declaration of Independence. Further, the con- 
vention was required to provide by ordinance, 
irrevocable without the consent of the United 
States and the people of the state : first, that 
there should be neither slavery nor involuntary 
servitude in the state ; second, that there should 
be perfect toleration of religious sentiment ; 
and only third, that the public lands should 
be secured to the United States. These first 
two provisions were not absolutely unprece- 
dented. Both were contained in the Ordinance 
of 1787, and had, therefore, become part of the 
fundamental law of five states. But the special 
mention of them in an enabling act was signifi- 
cant. 

It was left for Nebraska, in 1867, to become a 
state under an entirely novel restriction. The act 
of admission was to take effect 



3l8 ARE THE STATES EQUAL 

upon the fundamental condition that within the State of 
Nebraska there shall be no denial of the elective franchise 
or of any other right to any person because of race or color, 
excepting Indians not taxed, and upon the further funda- 
mental condition that the legislature of said state, by a 
solemn public act, shall declare the assent of said state to 
said fundamental condition. 

Colorado (1876) had the provision for religious 
tolerance thrown into the irrevocable ordinance 
by which national control of the public lands was 
established. The grants of lands for schools, 
public buildings, etc., were in her case, as in that 
of Nevada and Nebraska, made absolute benefac- 
tions. The two Dakotas, Montana and Washing- 
ton (1889) and Utah (1895) came in on much the 
same terms. ^ In their case, however, the irrevo- 
cable ordinance that was required of each included 
two new provisions : first, that public debts con- 
tracted under the territorial form should be 
assumed by the state ; and second, that a public 
school system should be established, open to all 
children of the state and free from sectarian 
control. And in the act relating to Utah the 
peculiar circumstances of her history were sug- 
gested by the proviso, attached to the require- 
ment of religious toleration, that ''polygamous, or 
plural, marriages are forever prohibited." Like 
the institution which made it necessary, this pro- 
vision is unique in our history. Idaho and Wyo- 

1 25 Statutes at Large, 676 ; 28 Ibid., 107. 



UNDER THE CONSTITUTION? 319 

ming (1890) escaped all conditions, whether in form 
or in substance.^ 

This completes the review of the legislation 
upon the addition of new states. It remains now 
to consider the case of the so-called rebel states, 
which were declared by Congress to have for- 
feited, by the attempted secession, all rights 
guaranteed by the constitution to members of 
the Union. By act of March 2, 1867, Congress 
announced the circumstances under which the 
forfeited rights would be restored. Later acts 
provided for carrying out the proposed plan of 
reconstruction. Tennessee had previously been 
admitted, upon conforming voluntarily to the gen- 
eral lines of Congress' desire. Of the other ten, 
all but three were finally admitted to representa- 
tion in Congress, as states of the Union, upon the 
fundamental condition that their constitutions 
should never be so amended as to deprive any 
citizen or class of citizens of the right to vote, 
except as a punishment for crime. Virginia, 
Mississippi and Texas were delayed in fulfilling 
the requirements of Congress ; as a consequence 
the ardor of the advocates of conditions rose in the 
meantime to such an extent that two additional 
limitations on the equality of those states were 
imposed ; the first forbade any law excluding 
negroes from the right to hold office ; the second 
forbade any amendment of the state constitution 

1 26 Statutes at Large, 215, 222. 



320 ARE THE STATES EQUAL 

that should deprive negroes of equal school privi- 
leges with the whites.^ 

From this survey of the practice since the 
United States became an independent nation, one 
fact stands out very distinctly, and that is, that 
Congress, whether authorized by the constitution 
or not, has, in the exercise of its power to admit 
new states, imposed conditions on the applicants, 
and that too, both in substance and in express 
terms. It is equally undeniable that, if these 
conditions are valid, and if by virtue of them 
rights are withheld that are enjoyed by the origi- 
nal states, the ancient dogma that this is a union 
of equal states is without foundation in constitu- 
tional law. The first question then that must 
command our attention is this : Are the laws of 
Congress imposing conditions upon new states, in 
accordance with the constitution of the United 
States ? 

II 

The conditions that we have found in our ex- 
amination may be grouped in respect to their form 
in three classes as follows : first, compacts, which, 
by unconstrained agreement, limit not only the 
states but also the United States in specified par- 
ticulars ; second, conditions upon admission which 
are absolute in form, but which are explicitly 

1 McPherson, History of the Reconstruction, p. 573 et seq. Cf. 
ante, p. 235 et seq. 



UNDER THE CONSTITUTION? 32 1 

conditions precedent, and hence exhaust their 
force at the moment the admission is perfected 
— as for example, that which required the ante- 
cedent consent of the township electors in Iowa ; 
and third, absolute conditions whose force is ob- 
viously intended to be permanent, and forever to 
restrict the power of the state. The best example 
of this last class is the prohibition of the recon- 
structed states ever to amend their constitutions 
in certain respects. 

The subjects in respect to which Congress has 
enacted permanent limitations may be grouped 
under seven heads : first, public lands ; second, navi- 
gable waters ; third, inter-state rights of United 
States citizens ; fourth, the principles of civil and 
religious liberty ; fifth, public debts of the states ; 
sixth, the public school system ; and seventh, 
equality in political and civil rights. 

Let us now ascertain upon what grants of power 
in the constitution the right of Congress rests to 
legislate in each of these forms and upon each of 
these subjects. And first, is Congress authorized 
to make a compact with a state of the Union, 
either existing or in embryo } The theory of our 
system is that the central government is one of 
strictly limited powers. For the definition of such 
powers as it has, only the constitution is to be 
consulted. By that instrument Congress is estab- 
lished as a law-making body. Especial care is 
taken to prevent the effectiveness of any action 

Y 



322 ARE THE STATES EQUAL 

of the two houses under any other form than that 
specifically laid down in the constitution. Every 
order, resolution and vote must be in fact a law.^ 
In the same way, a compact to which Congress is 
a party can have no extraordinary force on account 
of its special form. It is nothing more or less 
than a law. The agreement by the state to its 
terms adds nothing to its efficacy. Its validity 
can be tested only by the constitution. If Con- 
gress is authorized to enact that a certain regula- 
tion shall take effect upon the performance of some 
act by a certain community, it is authorized to en- 
force the regulation without regard to such act. 
A compact must be regarded then, so far as Con- 
gress is concerned, simply as a law. The question 
as to Congress' right to enter into a compact with 
a state becomes merely a question as to the con- 
stitutional power of the national legislature to 
enact a law involving the same principles. Our 
examination of the validity of the compacts which 
are supposed to create inequalities among the 
states must therefore deal with the substance 
rather than the form. We must ascertain under 
what grant of power in the constitution the various 
terms of the acts were enacted. 

Conditions precedent to admission must be 
treated on the same principle. The constitution 
itself, however, renders discussion of these prac- 
tically of no importance to our subject. Any act 

1 Constitution, art. i, sec. 7. 



UNDER THE CONSTITUTION? 323 

of Congress which affects United States territory 
only before its assumption of the state form may be 
justified under the plenary power granted by article 
four, section three. ^ The violent and protracted 
controversy as to the construction of this clause in 
connection with the slavery question may be con- 
sidered to have been settled by the Civil War. 
In spite of the contrary opinion in the Dred Scott 
Case, the power of Congress to make rules and 
regulations concerning the territories will be gen- 
erally conceded now to be unlimited save by the 
express prohibitions of the constitution. Condi- 
tions, therefore, which prescribe certain acts by 
either the people or the government of a territory 
as preliminary to admission as a state, are wholly 
within the power of the national legislature. 

An entirely different principle is involved in the 
matter of conditions subsequent, i.e., restrictions 
imposed while the territorial form prevailed, but 
intended to be of binding force after the assumption 
of the state dignity. The solution of the problem 
here is very similar to that in the case of compacts. 
The condition is only a law of Congress and has 
no greater force than any other law. The validity 
of the law depends on the constitutional authority 
for it ; or, in short, upon the substance rather than 
the form. It is held by some, however, that by 

1 "The Congress shall have power to dispose of, and make all 
needful rules and regulations respecting, the territory or other prop- 
erty belonging to the United States." 



324 ^RE THE STATES EQUAL 

the wording of the constitution, Congress is given 
unlimited control over the substance of the admit- 
ting act. " New states may be admitted by Con- 
gress into this Union," is the form the clause 
takes. It has been shown above that the probable 
intention of Gouverneur Morris in thus phrasing it 
was to leave room for an implication of power in 
Congress to impose conditions upon new states. 
The probability of such a purpose becomes cer- 
tainty in the light of a letter written by Morris in 
1803. "I always thought," he says, "when we 
should acquire Canada \sic\ and Louisiana, it 
would be proper to govern them as provinces and 
allow them no voice in our counsels. In wording 
the third section of the fourth article, I went so 
far as circumstances would permit to establish the 
exclusion." He significantly continues : " Candor 
obliges me to add my belief that had it been more 
pointedly expressed, a strong opposition would 
have been made."^ At the time of Louisiana's 
admission as a state, in 1811-12, the Federalists 
made a violent resistance to the equality clause, 
and Josiah Quincy went so far as to assert his 
solemn conviction that the admission of new states 
from acquired territory on equal terms with the 
old, was sufficient ground for a dissolution of the 
Union. The principle, however, was established, 
and continued in practice down to the Civil War, 

1 Quoted by Judge Campbell in the Dred Scott Case; 19 
Howard, 507. 



UNDER THE CONSTITUTION? 325 

of not making the implication for which Morris so 
craftily left room. 

With the tide of loose construction that set in 
with 1 86 1, the usage in this matter shared the fate 
of so many others. While the doctrine of un- 
limited Congressional discretion as to conditions 
upon a state's admission cannot be said to be defi- 
nitely established, yet it is beyond doubt that such 
an idea finds support in a very respectable body of 
constitutional lawyers. The argument of the sup- 
porters of this theory is that Congress is the agent 
of the nation in creating political corporations 
called states. Through the constitution, the nation 
has given Congress a discretion as to the powers it 
may confer on such corporations, limited only by 
the positive prohibitions of the fundamental law. 
There is nothing in the constitution requiring that 
the states shall be equal. The character of each 
corporation is impressed upon it by the special act 
by which it is admitted. No court can go behind 
the provisions of such an act to apply any extra- 
constitutional theory that all states have equal 
rights. In respect to such powers and duties as 
are positively ascribed to the states by the consti- 
tution, there is, of course, equality. Every state is 
entitled to an equal representation in the Senate, 
and to a proportionate number of members in the 
House of Representatives. Every state, whether 
new or old, is equally entitled to the guarantee of 
a republican form of government. But beyond 



326 ARE THE STATES EQUAL 

such clearly defined rights, Congress may deter- 
mine as it pleases the degree of restriction which 
it deems best for any particular community.^ 

In opposition to this view, the older theory main- 
tains that the equality of rights in the states is 
distinctly embodied in the constitution. Even if 
the above stated construction of the clause about 
the admission of states were good, it must be modi- 
fied by the amendments which have been added to 
the original instrument. Article ten of these 
amendments declares that "the powers not dele- 
gated to the United States by the constitution, 
nor prohibited by it to the states, are reserved 
to the states respectively, or to the people." This 
does not say "to the old states," or "to some of 
the states," but "to the states"; and it would be 
palpably erroneous to construe this expression to 
refer to less than every state in the Union. But 
if this is the case, any state can claim every right 
that is not delegated to the United States or pro- 
hibited to the states. In short, the instant a com- 
munity becomes entitled to the name of state, it 
has every power that is exercised by any other 
community bearing that name. A court, in decid- 
ing upon a state's right to exercise a given power, 
must look not to the act of admission, but to the 

1 See debates on the admission of Nebraska, Cong. Globe, 2d 
sess., 39th Congress. The subject was most exhaustively debated, 
also, in connection with the bills restoring the rebel states to repre- 
sentation, in 1868-70. 



UNDER THE CONSTITUTION? 327 

constitution under which this act of admission was 
passed. If the power in question is not delegated 
to the United States by the constitution nor pro- 
hibited by it to the states, it rightfully belongs to 
the state, anything in the act of Congress to the 
contrary notwithstanding. But without reference 
to this amendment, the clause respecting admis- 
sion, it is maintained, will not bear the construc- 
tion sought to be put upon it. This clause does 
not authorize Congress to create states, but to 
admit them. The creation of the state is antece- 
dent to the admission, and springs from the will of 
the people inhabiting the territory. The enabling 
act merely puts the stamp of the nation's approval 
upon the expression of this will. This may be, 
and in many cases has been, dispensed with. The 
genius of our institutions does not recognize the 
possibility of forever withholding from a commu- 
nity desiring it, the privilege of local self-govern- 
ment under the constitution. 

It must be confessed that, with all the strength 
of this theory, the derivation of the right to the 
state form from the genius of our institutions, or, 
as some have it, from the nature of things, is a 
little unsatisfactory. The foundation is a trifle 
too shadowy for the very substantial structure that 
rests upon it. 

No case has ever been decided by the Supreme 
Court in such form as to settle definitely which 
of these two conflicting: theories is correct. As 



328 ARE THE STATES EQUAL 

might be supposed, a very strong leaning towards 
the latter is discernible in several opinions ren- 
dered in the two decades immediately preceding 
the war. It was found possible, however, in every 
case, to decide the issue under some clause of the 
constitution other than that referring to the ad- 
mission of states. The substance rather than the 
form of the admitting acts was considered. But 
whichever of these theories may ultimately pre- 
vail, the answer to the question we have set before 
us — viz.y whether at the present time there is 
any inequality among the states — must be sought 
in the content of the supposed restrictions that 
thus far have been enacted. Compacts have been 
made with new states, by which those states re- 
signed certain powers ; fundamental conditions have 
been imposed, prohibiting the exercise of certain 
powers. Whether or not Congress was authorized 
to make the limitations, let us consider to what 
extent such limitations discriminate against the 
newer states. 



Ill 

We have already classified the restrictions that 
have been enacted and have found the first promi- 
nent subject to be the public lands of the United 
States. Either in the form of a compact or by 
way of fundamental condition, all but five of the 
states admitted since the formation of the consti- 



UNDER THE CONSTITUTION? 329 

tution are to-day forbidden to tax lands which are 
the property of the United States ; and in most 
cases the exemption covers the lands for from 
three to five years after their sale. The power of 
taxation has always been held to be an incident of 
sovereignty. Does this Hmitation upon the state's 
taxing power, then, interfere with the sovereignty 
which belongs to the state in respect to matters 
not delegated to the United States by the consti- 
tution ? 

As to the property of the United States, it has 
been settled that wherever it is situated it is above 
the state's demand for tribute. In practice, the 
national government regularly secures a cession 
of jurisdiction by the state within whose limits 
land is secured for a mint, post-office or other 
necessary institution. This custom has tended to 
obviate all controversy on this precise point. The 
general question of a state's right to tax property 
of the United States was discussed quite fully by 
the Supreme Court in McCuUough vs. Maryland. 
Here the state's lawyers contended that by the 
constitution the taxing power of the state was 
unlimited save as to imports and exports. ^ This 
view was explicitly rejected by the court ; but a 
positive opinion was not required upon more than 
the single matter of the United States Bank. 
This, it was decided, the states could not tax ; for 

^ 4 Wheaton, p. 328 et passim. Cf. constitution, art, i, sec. 10, 
Cl. 2. 



330 ARE THE STATES EQUAL 

the bank was a constitutional means for carrying 
into execution the powers vested in the general 
government. Whether land was such a consti- 
tutional means, was until recently an unsettled 
question. Justice McLean is responsible for the 
assertion that the government has paid taxes to 
the old states on its lands. ^ Not till 1886 was the 
problem authoritatively solved by the Supreme 
Court. In Van Brocklin vs. Tennessee,^ Justice 
Gray, in an opinion extraordinarily clear and ex- 
haustive, concludes that neither the people nor the 
legislature of Tennessee had power, by constitu- 
tion or statute, to tax land so long as the title 
remained in the United States. The basis of the 
opinion was the principle of McCuUough vs. Mary- 
land, and the further conclusion that 

the United States do not and cannot hold property, as a 
monarch may, for private or personal purposes. All the 
property and revenues of the United States must be held and 
applied, as all taxes, duties, imposts and excises must be laid 
and collected, " to pay the debts and provide for the common 
defense and general welfare of the United States." 

This decision leaves no room for any claim that 
the conditions prohibiting new states to tax gov- 
ernment lands deprives them of any right enjoyed 
by the old members of the Union. 

The exemption of the first purchaser of public 

1 U. S. vs. R. R. Bridge Co., 6 McLean, 531. 

2 117 U. S. 151. 



UNDER THE CONSTITUTION? 331 

land from the taxing power of the state for a time 
falls within a different category from the matter 
just discussed. In by far the greater number of 
instances, this exemption has been one of the con- 
siderations in a compact between the United States 
and the new state at its admission, by which, in 
return for the promise of exemption, various tracts 
of land are donated to the state. The transaction 
differs in no respect from an ordinary fiscal con- 
tract. The state foregoes the proceeds of the 
tax on certain property and receives value in the 
shape of certain other property. No political right 
is resigned by the state, and the United States is 
vested with no new political power. But it may 
be said that the state, as a sovereign power in 
respect to real estate within her boundaries, may 
repudiate the bargain at will. How could a pur- 
chaser obtain redress, if a tax were imposed before 
the expiration of the specified time t Would the 
United States courts undertake to restrain a state 
from taxing its own citizens .'* There seems to be 
good reason to believe that they would. In the 
early case of Green vs. Biddle,^ the Supreme Court 
decided that a compact by which Kentucky agreed 
to apply the law of Virginia to certain land cases 
could not be violated by the former without bring- 
ing her in conflict with the constitutional provi- 
sion in reference to impairing the obligation of 
contracts. There is no reason why a compact with 
1 8 Wheaton. i. 



332 ARE THE STATES EQUAL 

the United States should not be subject to the 
same rule. But the compact in this case could 
not, of course, be binding on the state if the other 
party had exceeded its powers in making the 
agreement. The United States can only con- 
tract within its constitutional powers. Its power 
in this case, however, may very fairly be derived 
from the authority to dispose of the territory of 
the nation.^ This same authority could also be 
made to cover those cases in which the five-year 
exemption is enacted not as a contract but as a 
mere condition. Here there would be more room 
for debate, but in view of the very liberal margin 
of discretion which the court has recognized to 
Congress in the choice of means for executing its 
powers, it is not at all likely that this extra induce- 
ment to purchasers would be adjudged beyond the 
line. 

In addition to this limitation of the taxing power 
of the new states, we find in most acts of admis- 
sion the provision that the respective states shall 
disclaim title to the public lands, or shall not in- 
terfere with the primary disposal thereof. That 
such a provision is no real restriction does not 
require demonstration. The land is the property 
of the United States, and cannot be made more 
so by any law of Congress. These formulas were 
inserted in the early acts out of abundant caution, 
and they are at the present day mere survivals. 

1 Cf. dicta in Pollard's Lessee vs. Hagan, 3 Howard, p. 224. 



UNDER THE CONSTITUTION? 333 

A special case that falls under this same head is 
that of Michigan's southern boundary. Michigan 
claimed that she had, by the Ordinance of 1787, 
an indefeasible right to enter as a state with the 
boundaries described therein. These boundaries 
would have included a strip of territory that had 
been assigned to Ohio. Congress settled the hot 
controversy which raged on the point by admitting 
the new state on condition that she accepted a 
boundary that included less than she demanded. 
The question involved here seems to be rather the 
construction of the Ordinance of 1787 than the 
ultimate control over the lands, and the so-called 
condition is only a regulation by which conflicting 
constructions are compromised. ^ 

To sum up our conclusions in reference to the 
clauses of the admission acts affecting public lands, 
it appears that no power has been exercised therein 
which could not be applied with the same effect to 
the older states, — in short, that no inequality of 
rights among the states exists by virtue of such 
clauses. 

The second subject which has been covered by 
fundamental conditions is the navigable waters of 
the new states. The right of Congress to make the 
rule that they shall be free from toll is no longer 
a debatable question. By the constitution Con- 
gress is authorized to regulate commerce among 
the several states. In the case of Pollard's Lessee 

1 Cooley, Constitutional Limitations, 4th cd., p. 34. 



334 ^^^ ^^^ STATES EQUAL 

VS. Hagan,^ the Supreme Court was called upon to 
construe the article of compact by which Alabama 
resigned the right to impose any burden on the 
navigation of her rivers. "This supposed com- 
pact," the decision runs, "is nothing more than a 
regulation of commerce, to that extent, among the 
several states. "2 This same principle was reaffirmed 
and enlarged upon in Withers vs. Buckley ct al.,^ 
some years later; and finally in Oilman vs. Phila- 
delphia,* decided in 1865, the court clinched its 
former judgments by the broad assertion that "the 
power to regulate commerce comprehends the con- 
trol for that purpose and to the extent necessary, of 
all the navigable waters of the United States which 
are accessible from a state other than those in which 
they lie." In view of this record, it is idle to seek 
for inequality among the states in this particular. 
Congress controls the Hudson and the Susque- 
hanna to precisely the same extent that it does 
the Missouri and the Arkansas. 

The third class of conditions — those relating to 
the inter-state rights of citizens — includes, first, 
the common clause that lands of non-resident citi- 
zens of the United States shall not be taxed higher 
than those of residents of the state ; and second, 
the condition under which Missouri was admitted, 
viz., that no law should be passed by the state by 
which any citizen of any other state should be 

1 3 Howard, 212. ^20 Howard, 93. 

2 Jbid., p. 230. * 3 Wallace, 724. 



UNDER THE CONSTITUTION? 335 

excluded from the enjoyment of any privileges 
and immunities to which such citizen was entitled 
under the constitution of the United States.^ As 
to this latter matter, no discussion is necessary to 
show that there is no restriction placed upon Mis- 
souri that does not rest upon every other state. 
Missouri is forbidden to infringe, under color of 
her constitution, a clear provision of the federal 
constitution. But the prohibition would be just 
as imperative in law without the act of Congress 
as with it ; and Massachusetts has no more power 
to deprive a citizen of another state of his consti- 
tutional privileges and immunities than has Mis- 
souri. 

The same principle applies to one phase of the 
taxation of non-residents. Taxes are a burden upon 
citizens, and exemption from taxation is therefore 
an immunity. Equal exemption of residents and 
non-residents is accordingly secured by the con- 
stitution, so far as concerns citizens of the several 
states. This has been so determined by the Su- 
preme Court in the case of Ward vs. Maryland.^ 
But the clause concerning the inter-state rights 
of citizens does not protect against discrimination 
such citizens of the United States as reside in the 
territories or in the District of Columbia. Can the 
land of such persons, then, be taxed by any state 

1 " The citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states." — Const., art. iv, sec. 2. 

2 12 Wallace, 418. 



336 ARE THE STATES EQUAL 

higher than the land of resident citizens of the 
state? If it can, the original states enjoy a right 
which is denied to almost every other member of 
the Union. The question, it must be confessed, 
is never likely to become of any practical impor- 
tance. If it ever does come up for consideration, 
the Fourteenth Amendment will unquestionably be 
relied upon to settle it. It is there declared that 
''no state shall make or enforce any law which 
shall abridge the privileges or immunities of citi- 
zens of the United States." Whether an equal 
rate of taxation with the other citizens of a state 
in which his land is situated is a privilege or im- 
munity of a citizen of the United States, is what 
must be decided. In view of the narrow construc- 
tion of the Fourteenth Amendment adopted by the 
Supreme Court in the Slaughter House and suc- 
ceeding cases, it is not likely that any power over 
state taxation would be assumed under the pro- 
hibition of the amendment ; and it seems certain 
that in no other part of the constitution is author- 
ity for the substance of the restriction under con- 
sideration to be found. If then. Congressional 
conditions upon the admission of states are ever 
binding, there does exist in reference to the power 
of taxation, an inequality among the states. 

The fourth class of restrictions is that which 
embraces various provisions designed to secure 
the fundamental principles of civil and religious 
liberty in the states. First, as to slavery. By 



UNDER THE CONSTITUTION? 337 

the Ordinance of 1787 slavery was prohibited in 
all the states to be formed from the Northwest 
Territory. This ordinance was enacted as a law 
of Congress in August, 1789. Was its prohibi- 
tion of slavery a valid restriction on the right of 
a state to determine for itself its domestic insti- 
tutions ? The violent and prolonged controversy 
on this point is familiar to every reader of our 
political history. As none of the states under 
the ordinance ever wished to establish slavery, 
the question never became a practical one. The 
Supreme Court held, in two cases,i that the ordi- 
nance had no more authority than any other law 
of Congress, and that its principles were only 
effective so far as discoverable in the constitution 
of the United States or in the constitutions and 
laws of the states respectively.^ This view throws 
the question back again upon the constitution. 
No power to abolish slavery within a state was 
granted to Congress. Unless, then, the general 
power to impose restrictions on new states be- 
longs to the national legislature, Ohio and the 
adjoining states, in spite of the slavery prohibition 
in the ordinance, enjoyed equal power over the 

1 Permoli vs. Municipality, 3 Howard, 589. Strader et al. vs. 
Graham, 10 Howard, 94. 

- For a different opinion, see Spooner vs. McConnell, i McLean, 
344. Judge Cooley thinks that the weight of judicial authority 
favors the validity of the ordinance even in respect to such of its 
principles as are not re-enacted in the state laws. Constitutional 
Limitations, 4th cd., p. 34, note, 
z 



338 ARE THE STATES EQUAL 

subject with the remaining members of the Union. 
In admitting Nevada, in 1864, Congress made the 
prohibition of slavery an article of fundamental 
compact with the state, and she was thus thrown 
into the same category with those formed from 
the Northwest Territory. All question as to the 
equality of the states in this respect, however, was 
removed by the ratification of the Thirteenth 
Amendment in 1865. If before that time the six 
states were inferior to the majority in their ab- 
stract power, to-day these latter are reduced to 
the lower level. 

It is only when we take up a further considera- 
tion of civil and religious liberty that we come to 
a still enduring uncertainty. The states formed 
from the Northwest Territory, as well as several 
others, are to-day bound by the terms of their 
admission forever to maintain in their constitu- 
tions what are recognized as the fundamental 
guarantees of civil liberty. The second article 
of compact in the Ordinance of 1787 secures to 
the inhabitants of the territory the benefit of the 
writ of habeas corpus and of trial by jury, judicial 
proceedings according to the course of the common 
law, exemption from excessive fines and cruel or 
unusual punishments, and due process of law in 
the deprivation of life, liberty or property. More- 
over, compensation is required for property or 
services taken by the state without consent, and 
any law impairing the obligation of contracts is 
declared void. 






UNDER THE CONSTITUTION? 339 

Only the last of these restrictions was placed 
upon all the states by the original constitution. 
The rest are contained substantially in the con- 
stitution of every state, and until after the Civil 
War the rights which they protected were consid- 
ered secure enough without the guarantee of the 
national government. In the Fourteenth Amend- 
ment, however, three clauses were inserted, with 
a purpose to guard against any invasion of the 
fundamental civil rights by the states. 

No state shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States ; 
nor shall any state deprive any person of life, liberty or prop- 
erty, without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws. 

To what extent, then, do these clauses give the 
federal courts a corrective jurisdiction over state 
legislation and procedure } Do they afford a con- 
stitutional foundation for the power assumed by 
Congress in laying upon the states the restrictions 
under consideration } 

It was held at first by many lawyers that the 
phrase "privileges and immunities of citizens of 
the United States " would include all the ordinary 
ingredients of civil liberty. This was denied by 
the Supreme Court in the Slaughter House Cases, 
and it was there decided that the fundamental 
civil rights were still, as before, primarily under 
the care of the states.^ A limitation is put upon 
1 16 Wallace, 77. 



340 ARE THE STATES EQUAL 

the latter, however, by the prohibition to deprive 
of life, liberty or property without due process of 
law, or to refuse to any one the equal protection 
of the laws. " Due process of law " has been au- 
thoritatively defined to mean the process and pro- 
cedure of the common law.^ The courts have 
always manifested a disposition to construe the 
expression with the greatest liberality in favor of 
the individual. 2 Under such circumstances there 
can be no doubt that every state can now be held 
within the bounds that were established only for 
particular states by the Ordinance of 1787 and the 
various admission acts. The privilege of bail, ex- 
emption from immoderate fines and cruel punish- 
ments, and compensation for expropriated property 
are elements of the due process which must, 
under the constitution, be observed in every state. 
Whether the privilege of the writ of habeas corpus 
is required by the clause under discussion may not 
be perfectly clear, but probability is strongly on 
the side of an affirmative answer. Judge Cooley 
considers that "due process" does not refer to 
rules of procedure only, but to "those principles 
of civil liberty and constitutional protection which 
have become established in our system of laws."^ 
There can scarcely be a doubt that the principle 

1 Murray's Lessee vs. Hoboken Land Imp. Co., i8 Howard, 272. 

2 Davidson vs. New Orleans, 96 U. S. 97; R. R. Tax Cases, 
13 Federal Reporter, 763. 

* Constitutional Limitations, 4th ed., p. 441. 



UNDER THE CONSTITUTION? 341 

of protection by the habeas corpus has become so 
established. 

A single clause of the second article of the 
great ordinance has been left unconsidered. It 
is prescribed that the people shall always be en- 
titled to proportionate representation in the legis- 
lature. It is obvious, without further comment, 
that this privilege is covered by the guarantee of a 
republican form of government in the constitution. 

In the sphere of civil rights, properly so called, 
there is thus no distinction among the states in 
respect to their authority. Let us examine the 
matter of religious liberty. The first article of the 
Ordinance of 1787 is in these words : "No person 
demeaning himself in a peaceable and orderly 
manner shall ever be molested on account of his 
mode of worship or religious sentiments in the said 
territory." This restriction, as part of the ordi- 
nance, was imposed upon a number of the states 
admitted early in the century, but disappeared from 
view for a long time till it once more came to the 
surface in the admission of Nevada. It purports 
to put the freedom of worship and of religious 
belief in certain states under the protection of the 
national government. There has never been a 
pretence made that authority over this subject is 
conferred upon the national government by the 
constitution. The United States is prohibited by 
the First Amendment from interfering with the free 
exercise of religion. The same clause forbids any 



342 ARE THE STATES EQUAL 

abridgment of the right peaceably to assemble and 
to petition for redress of grievances. An opinion 
on the latter prohibition was rendered by the 
Supreme Court in the case of United States vs. 
Cruikshank.^ It was argued by counsel that the 
prohibition implied that the right to assemble was 
a privilege of United States citizenship, and that 
it was therefore under the protection of Congress, 
by the Fourteenth Amendment. The court flatly 
rejected the plea. The claim to control by the 
United States over freedom of worship rests upon 
precisely the same ground. It follows, therefore, 
that the absolute power of Congress to impose re- 
strictions upon states at their admission is the only 
foundation for the condition under discussion, and 
that if this power exists, the states which have 
entered with this limitation are to that extent in- 
ferior in rights to the others. As long, however, 
as the spirit of tolerance remains as it is among 
the people, this fact can have no more than a 
speculative interest. 

In the act providing for the admission of Utah, 
the usual clause in reference to toleration is accom- 
panied by a proviso forever prohibiting polygamy. 
This proviso may be construed either as a declara- 
tion that polygamy is not to be considered a "mode 
of worship " such as to fall under the toleration 
secured by the clause, or as an independent restric- 
tion upon the state. In the former case Utah falls 
1 92 u. S. 542. 



UNDER THE CONSTITUTION? 343 

into the same category with the states just consid- 
ered ; in the latter she must be regarded as subject 
to a restriction not resting upon any other state. 
In neither case is there any constitutional basis for 
control of the matter by the national government 
other than the assumed power to impose restric- 
tions upon states. 

The fifth class of restrictions includes the re- 
quirements that five of the states last admitted 
shall assume the territorial public debts. This is 
probably to be regarded as merely a transitional 
requirement, whose force is exhausted when the 
admission is complete. It would be possible to 
contend that, inasmuch as the ordinance assuming 
the debts is " irrevocable without the consent of 
the United States," the national government would 
be bound to interpose in case the state failed to 
discharge its obligation in respect to this particular 
part of its debt. Such a contention, however, 
would have to be based on the claim that the con- 
stitution authorized the United States to see that 
a state paid its debts — a claim which the familiar 
history of our state debts would prohibit any 
rational man from bringing forward. 

The sixth class of restrictions is found in the 
provision requiring a non-sectarian public school 
system. There is no direct ground whatever in 
the constitution for any control by the national 
government over education in the states. The 
provision under consideration, if valid, must rest 



344 ^^^ ^^-^ STATES EQUAL 

upon the power to limit states at their admission. 
It would be possible to claim that the requirement 
of a public school system of the character stated 
should be considered an equivalent for the grants 
of land for school purposes embodied by Congress 
in the laws admitting the states. Historically there 
would be some basis for this claim ; in the early 
admitting acts the grants were made in the form 
of contracts involving some return by the states. 
These early equivalents, however, were in the form 
of tax-exemptions — involving actual pecuniary con- 
siderations. The cession of jurisdiction over an 
institution of the greatest political and social im- 
portance could hardly be said to stand upon the 
same basis. Moreover, the Supreme Court has 
held, in a somewhat analogous matter, that the 
observance by the states of a condition attached 
to the grant of lands "rests upon the good faith 
of the states."^ 

The last class of restrictions includes only the 
new condition demanded of Nebraska. The rebel 
states, it is true, were obliged to admit the negroes 
to the polls and to recognize them as equal in civil 
rights, as a condition of restoration after the war ; 
but the action of Congress in this instance was 
acknowledged on all sides to be an extraordinary 
proceeding, based upon the war powers of the 
national government. Nebraska, however, on no 
special ground of necessity, was distinctly pro- 

1 Mills County m. R. R. Co., 107 U. S. 557. 



UNDER THE CONSTITUTION? 345 

hibited to deny the right to vote or any other right 
to any citizen on account of race or color. At this 
time, many of the Northern states still retained the 
word white in the suffrage clauses of their consti- 
tutions, and in the border states, at least, the blacks 
were under important limitations as to civil rights. 
No authority of any weight whatever questioned 
the right of the states to determine the qualifica- 
tions of electors for themselves, or admitted any 
power in Congress to interfere with the rule 
adopted. If the law of Nebraska's admission, 
therefore, was valid,^ that state passed the first 
years of its existence on a plane of distinct 
inferiority to the other states. The Fourteenth 
and Fifteenth Amendments, however, removed the 
irregularity. By them, the limitations which had 
been imposed upon Nebraska by law were made 
effective upon all the states by the constitution. 

This completes the review of restrictions im- 
posed upon states at their original admission into 
the Union. A special case now requiring notice is 
that of the rebellious states which were recon- 
structed by Congress. Practically these states 
were reduced to the condition of provinces, and 
then erected de novo into autonomous common- 
wealths. From a legal point of view, however, the 
Supreme Court refused to admit that the conti- 

^ The reasons assigned for the votes on the passage of the 
restricting clause in the Senate are interesting. See Globe, 2d sess. 
39th Cong., p. 360; also p. 450. 



346 ARE THE STATES EQUAL 

nuity of the state life had ever been broken. ^ The 
course of Congress throughout reconstruction was 
declared to have been a legitimate exercise of the 
power to guarantee a republican form of govern- 
ment. Upon this authority in the constitution, 
therefore, the justification of the conditions of 
restoration must rest. The first Reconstruction 
Act^ required that in each rebel state a constitu- 
tion should be framed by representatives chosen by 
impartial suffrage, and that this constitution should 
insure the franchise to the blacks. The ratifica- 
tion of the Fourteenth Amendment (and in case 
of Virginia, Mississippi and Texas, of the Fif- 
teenth) was also demanded. These were conditions 
precedent to the resumption of state rights ; their 
force was of course exhausted at the moment of 
such resumption. But the acts of Congress restor- 
ing normal relations contained the most stringent 
form of condition subsequent to be found in our 
history. It was declared a fundamental condition 
of each state's representation in Congress, that the 
state constitution should never be so amended as to 
deprive of the right to vote any citizen or class of 
citizens entitled to vote by the constitution in ques- 
tion. This limitation of the right to fix the quali- 
fications of voters produced a most vital inequality 
between the reconstructed and the loyal states. 

1 Texas vs. White, 7 Wallace, 700. Cf. Shortridge vs. Macon, 
Chase's Decisions, 136; Gunn vs. Barry, 15 Wallace, 623. 

2 Act of March 2, 1867. 



UNDER THE CONSTITUTION? 347 

The inequality was greatly reduced, however, by 
the Fifteenth Amendment. The chief purpose 
of the restriction in the restoring acts was to 
prevent the reconstructed states from taking away 
the suffrage from the blacks. By the amendment 
all the states, loyal as well as rebellious, were re- 
stricted in this respect to the same extent. But 
the wording of the restoring acts was wider in its 
scope than that of the amendment. The restored 
states were prohibited from narrowing the elec- 
torate on any ground ; the remaining states were 
prohibited only as to race, color or previous condi- 
tion of servitude. If the conditions of restoration 
are valid, therefore, the ten reconstructed states still 
remain theoretically on a lower level of rights than 
the other states. Practically this distinction has dis- 
appeared. Mississippi in 1890 and South Carolina 
in 1895 amended their constitutions by establishing 
severe intelligence and property qualifications for 
the suffrage. The two states openly defied the 
acts of Congress restoring them to their rights 
after rebellion, and the defiance was based on 
the claim to equal rights with any of the other 
states of the Union. 

In the restoration of Virginia, Texas and Mis- 
sissippi, two further fundamental conditions were 
imposed. First, these states were forbidden to 
make the race, color or previous servitude of any 
citizen of the United States a disqualification for 
holding office, or to discriminate in qualifications 



348 ARE THE STATES EQUAL 

for office between classes of citizens ; and second, 
their constitutions were never to be so amended 
as to deprive any United States citizens of the 
school rights and privileges secured therein. 

The right to hold office is not expressly placed 
by the constitution under the guarantee of the 
United States.^ The tendency of the Supreme 
Court's decisions does not indicate a probability 
that the right can be adjudged a privilege of 
United States citizenship, or be classed with those 
rights to which every state must give the equal 
protection of the laws. It is a historical fact that 
a determined effort was made, during the discus- 
sion of the Fifteenth Amendment in Congress, to 
include the right to hold office in the prohibition 
of that article. The proposition was passed at dif- 
ferent times by both Senate and House, but finally 
disappeared in conference committee.^ In view of 
this fact, the control of the whole subject seems to 
be still in the states, and the restriction placed 
upon Virginia, Mississippi and Texas deprives 
them of a right which is enjoyed by all the other 
members of the Union. 

The guarantee of equal school privileges to all 
citizens of the United States within those three 
states was based on an assumption that educational 

1 Ultra-liberal construction might possibly regard it as inci- 
dental to a republican form of government, and thus justify its 
protection by Congress. 

2 Globe, 3d sess., 40th Cong., pp. 1040, 1428, 1481. 



UNDER THE CONSTITUTION? 349 

facilities were a right of United States citizenship. 
There is no ground in the constitution for this 
assumption. Education is a matter which was left 
wholly within state control. Whatever privileges 
in this direction are granted by a state to its citi- 
zens may, of course, be enjoyed by citizens of 
other states v^^hile within its boundaries. This en- 
joyment, however, is a privilege that results from 
state citizenship under the ante-bellum constitu- 
tion. Citizens of the United States, as such, can- 
not claim it. The case is entirely analogous to 
that of the taxation of the land of non-residents. 
Unequal laws are unconstitutional so far as citizens 
of other states are concerned ; citizens of the terri- 
tories and of the District of Columbia are not thus 
protected. The act of Congress, therefore, which 
forbids any discrimination whatever in the three 
states limits their power to that extent within the 
bounds prescribed for the rest.^ 



IV 

The review of the acts of Congress by which 
the powers of the various states have been re- 
stricted is now complete. It has been shown that 

1 The federal circuit court in Kentucky expressed its readiness 
to grant an injunction restraining the application of money raised 
by state taxes to schools open to white children exclusively. The 
ground was the Fourteenth Amendment. Claybrook vs. Owens- 
boro, 23 Fed. Rep. 634. 



350 ARE THE STATES EQUAL 

a great majority of the compacts and fundamental 
conditions were such only in name, and were 
wholly without influence on the constitutional 
relations of the national and state governments. 
We have seen how several real and vital limita- 
tions imposed by law upon individual states were 
afterwards extended to all by amendment of the 
national constitution. The residuum of matters in 
which inequality may still be fairly held to exist 
is small and comparatively unimportant. In brief, 
it may be summed up thus : Ohio, Indiana, Illinois, 
Michigan, Wisconsin, Mississippi, Alabama, Louisi- 
ana, Arkansas, Minnesota, Iowa, Oregon, California, 
Kansas, Nevada, Nebraska, Colorado, Montana, the 
two Dakotas, Washington and Utah have not the 
right, enjoyed by the original states, of discrim- 
inating in land-taxation against citizens of the 
United States who are not citizens of any state ; 
Ohio, Indiana, Illinois, Michigan, Wisconsin, Lou- 
isiana, Mississippi, Alabama, Nevada, Nebraska, 
Colorado, Montana, the two Dakotas, Washington 
and Utah are forbidden to establish any rule inter- 
fering with the freedom of worship or religious 
sentiment, while no such prohibition rests upon 
the other states ; Montana, Washington, the two 
Dakotas and Utah are required to establish non- 
sectarian systems of public schools ; Utah is for- 
bidden to permit the existence of polygamy; 
Virginia, North Carolina, South Carolina, Georgia, 
Florida, Alabama, Mississippi, Arkansas, Louisiana 



UNDER THE CONSTITUTION? 35 1 

and Texas are forbidden to amend the franchise 
clauses of their constitutions in certain respects as 
to which the rest of the states are free from re- 
straint ; and finally, Virginia, Mississippi and Texas 
are forbidden to make race, color or previous con- 
dition of servitude a disqualification for holding 
office, or to amend their constitutions so as to 
deprive any citizen of the United States of the 
school privileges secured therein. 

The conclusion from all the historical facts 
seems to be that at no time since the formation 
of the present constitution have all the states of 
the Union been in the enjoyment of equal powers 
under the laws of Congress. A principle of con- 
stitutional law under our system can never be said 
to be fully established until it has received the 
positive sanction of all three co-ordinate depart- 
ments of the government. Tested by this rule 
the theory of equal states falls to the ground. 
Neither by the judiciary nor by the executive 
has the doctrine been decisively affirmed ; while 
the action of the legislature has been in many 
cases in positive contradiction of it. A century of 
legislation cannot but be regarded as making a 
pretty strong foundation for the interpretation of 
any part of the constitution. It is the legislature 
that must interpret the organic law in the first 
instance, and such interpretation must stand as 
sound until overruled by the Supreme Court. But 
in political questions the court has consistently 



352 ARE THE STATES EQUAL? 

declined to take jurisdiction. In such matters 
the action of the legislature is conclusive. There 
seems to be good reason for considering the rela- 
tion of the United States to the individual states 
in respect to the terms of admission a political 
question. If it is, the theory that all states have 
equal powers must be regarded as finally defunct ; 
if it is not, the theory can only be galvanized into 
life by a powerful act of judicial construction. 

But while such is the technical position of the 
doctrine in constitutional law, it enjoys a some- 
what different role in general public opinion and in 
practice. Whatever differences may exist in the 
powers which the states may exercise over differ- 
ent subjects, the powers which they do exercise 
are everywhere substantially the same. That the 
maintenance of such a condition of things is at 
present the wisest policy for the nation, will be 
doubted by no one. Time, however, may change 
all this. The differentiation of interests in the 
vast region covered by the states may bring about 
a situation in which the welfare of the whole will 
be best subserved by an unequal distribution of 
powers among the parts. When that time comes, 
the theory of equal states will disappear as did 
that of state-sovereignty, and possibly with as 
tremendous a convulsion. 



THE UNDOING OF RECONSTRUCTION 

In July of 1870, when the law declaring Georgia 
entitled to representation in Congress was finally 
enacted, the process of reconstruction was, from 
the technical point of view, complete. Ten of the 
states which had seceded from the Union had been 
" made over " by a series of operations which 
involved, first, the creation in each of a new po- 
litical people, in which the freedmen constituted 
an important element, and, second, the organiza- 
tion in each of a new government, in the working 
of which the participation of the blacks on equal 
terms with the whites was put under substantial 
guarantees. The leading motive of the reconstruc- 
tion had been, at the inception of the process, to 
insure to the freedmen an effective protection of 
their civil rights, — of Hf e, liberty and property. 
In the course of the process, the chief stress came 
to be laid on the endowment of the blacks with 
full political rights, — with the electoral franchise 
and eligibility to office. And by the time the 
process was complete, a very important, if not 
the most important, part had been played by the 
desire and the purpose to secure to the Republi- 
can Party the permanent control of several South- 
ern states in which hitherto such a political 
2 A 353 



354 ^-^^ UNDOING OF RECONSTRUCTION 

organization had been unknown. This last motive 
had a plausible and widely accepted justification 
in the view that the rights of the negro and the 
" results of the war " in general would be secure 
only if the national government should remain in- 
definitely in Republican hands, and that therefore 
the strengthening of the party was a primary dic- 
tate of patriotism. 

Through the operation of these various motives, 
successive and simultaneous, the completion of the 
reconstruction showed the following situation : 
(i) the negroes were in the enjoyment of equal 
political rights with the whites ; (2) the Republi- 
can Party was in vigorous life in all the Southern 
states, and in firm control of many of them ; and 
(3) the negroes exercised an influence in political 
affairs out of all relation to their intelligence or 
property, and, since so many of the whites were 
disfranchised, excessive even in proportion to their 
numbers. At the present day, in the same states, 
the negroes enjoy practically no political rights; 
the Republican Party is but the shadow of a name ; 
and the influence of the negroes in political affairs 
is nil. This contrast suggests what has been in- 
volved in the undoing of reconstruction. 



Before the last state was restored to the Union 
the process was well under way through which the 



THE UNDOING OF RECONSTRUCTION 355 

resumption of control by the whites was to be 
effected. The tendency in this direction was 
greatly promoted by conditions within the Repub- 
lican Party itself. Two years of supremacy in 
those states which had been restored in 1868 had 
revealed unmistakable evidences of moral and 
poHtical weakness in the governments. The per- 
sonnel of the party was declining in character 
through the return to the North of the more sub- 
stantial of the carpet-baggers, who found Southern 
conditions, both social and industrial, far from 
what they had anticipated, and through the very 
frequent instances in which the "scalawags" ran 
to open disgrace. Along with this deterioration in 
the white element of the party, the negroes who 
rose to prominence and leadership were very fre- 
quently of a type which acquired and practiced the 
tricks and knavery rather than the useful arts of 
politics, and the vicious courses of these negroes 
strongly confirmed the prejudices of the whites. 
But at the same time that the incapacity of the 
party in power to administer any government was 
becoming demonstrable, the problems with which 
it was required to cope were made by its adversa- 
ries such as would have taxed the capacity of the 
most efficient statesmen the world could produce. 
Between 1868 and 1870, when the cessation of the 
national mihtary authority left the new state gov- 
ernments to stand by their own strength, there 
developed that widespread series of disorders with 



356 THE UNDOING OF RECONSTRUCTION 

which the name of the Ku Klux Klan is associated. 
While these were at their height the RepubUcan 
Party was ousted from control in four of the old 
rebel states, namely, Tennessee, North Carolina, 
Georgia and Virginia. The inference was at once 
drawn that the whites of the South were pursuing 
a deliberate policy of overthrowing the negro party 
by violence. No attention was paid to the claim 
that the manifest inefficiency and viciousness of 
the Republican governments afforded a partial, if 
not a wholly adequate, explanation of their over- 
throw. Not even the relative quiet and order that 
followed the triumph of the whites in these states 
were recognized as justifying the new regime. The 
North was deeply moved by what it considered 
evidence of a new attack on its cherished ideals 
of liberty and equality, and when the Fifteenth 
Amendment had become part of the constitution. 
Congress passed the Enforcement Acts and the laws 
for the federal control of elections. To the forces 
making for the resumption of white government in 
the South was thus opposed that same apparently 
irresistible power which had originally overthrown it. 
That the Ku Klux movement was to some extent 
the expression of a purpose not to submit to the 
political domination of the blacks, is doubtless true. 
But many other motives were at work in the dis- 
orders, and the purely political antithesis of the 
races was not so clear in the origin and develop- 
ment of the movement as in connection with the 



I 



THE UNDOING OF RECONSTRUCTION 357 

efforts of the state governments to suppress it. 
Thousands of respectable whites, who viewed the 
Ku Klux outrages with horror, turned with equal 
horror from the projects of the governments to 
quell the disturbances by means of a negro militia. 
Here was the crux of the race issue. Respectable 
whites would not serve with the blacks in the 
militia ; the Republican state governments would 
not — and indeed, from the very nature of the 
case, could not — exclude the blacks from the 
military service; the mere suggestion of employ- 
ing the blacks alone in such service turned every 
white into practically a sympathizer with the Ku 
Klux : and thus the government was paralyzed at 
the foundation of its authority. It was demon- 
strated again and again that the appearance of a 
body of negroes under arms, whether authorized by 
law or not, had for its most certain result an affray, 
if not a pitched battle, with armed whites, in which 
the negroes almost invariably got the worst of it. 

On the assumption, then, that the white state 
governments in the South were unwilling, and the 
black governments were unable, to protect the 
negro in his rights. Congress inaugurated the pol- 
icy of the " Force Acts." The primary aim was 
to protect the right to vote, but ultimately the 
purely civil rights, and even the so-called " social 
rights," were included in the legislation. By the 
act of 1870,^ a long series of minutely specified 

1 16 Statutes at Large, 140. 



358 THE UNDOING OF RECONSTRUCTION 

offenses, involving violence, intimidation and fraud, 
with the effect or even the intention of denying 
equal rights to any citizens of the United States, 
were made crimes and misdemeanors, and were 
thus brought under the jurisdiction of the federal 
courts. Great activity was at once displayed by 
the United States district attorneys throughout the 
South, and hundreds of indictments were brought 
in ; but convictions were few. The whites opposed 
to the process of the federal courts, supported by 
federal troops, no such undisguised resistance as 
had often been employed against state officers 
backed by a posse comitatus or a militia com- 
pany of negroes. But every advantage was taken 
of legal technicalities; in the regions where the 
Ku Klux were strong, juries and witnesses were 
almost invariably influenced by sympathy or terror 
to favor the accused ; and the huge disproportion 
between the number of arrests and the number of 
convictions was skillfully employed to sustain the 
claim that the federal officers were using the law 
as the cover for a systematic intimidation and 
oppression of the whites. As the effect of this 
first act seemed to be rather an increase than a 
decrease in the disorders of the South, Congress 
passed in the following year a more drastic law. 
This, known commonly as the Ku Klux Act,^ 
healed many technical defects in the earlier law ; 
reformulated in most precise and far-reaching 

1 17 Statutes at Large, 13. 



THE UNDOING OF RECONSTRUCTION 359 

terms the conspiracy clause, which was especially 
designed to cover Ku Klux methods ; and, finally, 
authorized the President, for a limited time, to sus- 
pend the writ of habeas corpus and employ military 
force in the suppression of violence and crime in 
any given district. In addition to the punitive sys- 
tem thus established. Congress at the same time 
instituted a rigorous preventive system through the 
Federal Elections Laws. By acts of 1871 and 
1872,^ every polHng place, in any election for 
Congressmen, might be manned by ofificials ap- 
pointed by the federal courts, with extensive 
powers for the detection of fraud, and with 
authority to employ the federal troops in the 
repression of violence. 

Through the vigorous policy thus instituted by 
the national government the movement toward the 
resumption of control by the whites in the South 
met with a marked though temporary check. The 
number of convictions obtained under the Ku Klux 
Act was not large, and President Grant resorted 
in but a single instance — that of certain counties 
in South Carolina, in the autumn of 1871 — to the 
extraordinary powers conferred upon him. But 
the moral effect of what was done was very great, 
and the evidence that the whole power of the na- 
tional government could and would be exerted on 
the side of the blacks produced a salutary change in 
method among the whites. The extreme and vio- 

1 U. S. Revised Statutes, § 201 1 et seq. 



36o THE UNDOING OF RECONSTRUCTION 

lent element was reduced to quiescence, and haste 
was made more slowly. No additional state was 
redeemed by the whites until 1874. Meanwhile, 
the wholesale removal of political disabilities by 
Congress in 1872 brought many of the old and 
respected Southern politicians again into public 
life, with a corresponding improvement in the 
quality of Democratic leadership. More defer- 
ence began to be paid to the Northern sentiment 
hostile to the Grant administration which had been 
revealed in the presidential campaign of 1872, and 
the policy of the Southern whites was directed 
especially so as to bring odium upon the use of 
the military forces in the states yet to be wrested 
from black control. 

It was upon the support of the federal troops 
that the whole existence of the remaining black 
governments in the South came gradually to de- 
pend. Between 1872 and 1876 the Republican 
Party split in each of the states in which it still 
retained control, and the fusion of one faction with 
the Democrats gave rise to disputed elections, 
general disorder, and appeals by the radical Re- 
publicans to the President for aid in suppress- 
ing domestic violence. Alabama, Arkansas and 
Texas emerged from the turmoil in 1874 with the 
whites triumphant ; and the federal troops, after 
performing useful service in keeping the factions 
from serious bloodshed, ceased to figure in politics. 
But in Louisiana and South Carolina the radical 



THE UNDOING OF RECONSTRUCTION 36 1 

factions retained power exclusively through the 
presence of the troops, who were employed in 
the former state to reconstitute both the legisla- 
ture and the executive at the bidding of one of the 
claimants of the gubernatorial office. The very 
extraordinary proceedings in New Orleans greatly 
emphasized the unfavorable feeling at the North 
toward ** governments resting on bayonets"; and 
when, upon the approach of the state election of 
1875 in Mississippi, the radical governor applied 
for troops to preserve order, President Grant 
rather tartly refused to furnish them. The re- 
sult was the overthrow of black government in 
that state. Though strenuously denied at the 
time, it was no deep secret that the great negro 
majority in the state was overcome in this cam- 
paign by a quiet but general exertion of every 
possible form of pressure to keep the blacks from 
the polls. The extravagance and corruption of 
the state administration had become so intol- 
erable to the whites that questionable means of 
terminating it were admitted by even the most 
honorable without question. There was rela- 
tively little "Ku-Kluxing" or open violence, but 
in countless ways the negroes were impressed 
with the idea that there would be peril for them 
in voting. " Intimidation " was the word that had 
vogue at the time, in describing such methods, and 
intimidation was illegal. But if a party of white 
men, with ropes conspicuous on their saddlebows, 



362 THE UNDOING OF RECONSTRUCTION 

rode up to a polling place and announced that 
hanging would begin in fifteen minutes, though 
without any more definite reference to anybody, 
and a group of blacks who had assembled to vote 
heard the remark and promptly disappeared, votes 
were lost, but a conviction on a charge of intimida- 
tion was difficult. Or if an untraceable rumor 
that trouble was impending over the blacks was 
followed by the mysterious appearance of bodies 
of horsemen on the roads at midnight, firing guns 
and yelling at nobody in particular, votes again 
were lost, but no crime or misdemeanor could be 
brought home to any one. Devices like these 
were familiar in the South, but on this occasion 
they were accompanied by many other evidences 
of a purpose on the part of the whites to carry 
their point at all hazards. The negroes, though 
numerically much in excess of the whites, were 
very definitely demoralized by the aggressiveness 
and unanimity of the latter, and in the ultimate 
test of race strength the weaker gave way. 

The " Mississippi plan " was enthusiastically 
applied in the remaining three states, Louisiana, 
South Carolina and Florida, in the elections of 
1876. Here, however, the presence of the federal 
troops and of all the paraphernalia of the Federal 
Elections Laws materially stiffened the courage of 
the negroes, and the result of the state elections 
became closely involved in the controversy over 
the presidential count. The Southern Democratic 



THE UNDOING OF RECONSTRUCTION 363 

leaders fully appreciated the opportunity of their 
position in this controversy, and, through one of 
those bargains without words which are common 
in great crises, the inauguration of President 
Hayes was followed by the withdrawal of the 
troops from the support of the last radical govern- 
ments, and the peaceful lapse of the whole South 
into the control of the whites. 



II 

With these events of 1877 the first period in the 
undoing of reconstruction came to an end. The 
second period, lasting till 1890, presented condi- 
tions so different from the first as entirely to 
transform the methods by which the process was 
continued. Two, indeed, of the three elements 
which have been mentioned as summing up recon- 
struction still characterized the situation : the ne- 
groes were precisely equal in rights with the other 
race, and the Republican Party was a powerful 
organization in the South. As to the third ele- 
ment, the disproportionate political influence of 
the blacks, a change had been effected, and their 
power had been so reduced as to correspond much 
more closely to their general social significance. 
In the movement against the still enduring fea- 
tures of reconstruction the control of the state 
governments by the whites was of course a new 
condition of the utmost importance; but not less 



364 THE UNDOIXG OF RECONSTRUCT! OX 

vital was the party complexion of the national 
government. From 1S75 to iSSo neither of the 
great parties was at any one time in effective con- 
trol of both the presidency and the two houses of 
Congress. As a consequence, no partisan legis- 
lation could be enacted. Though the state of 
affairs in the South was for years a party issue 
of the first magnitude, the legislative deadlock 
had for its general result a policy of non-interfer- 
ence by the national government, and the whites 
were left to work out in their own way the ends 
thev had in view. Some time was necessary, how- 
ever, to overcome the influence of the two bodies 
of legislation already on the national statute book, 
— the Force Acts and the Federal Flections Laws. 
During the Hayes administration the latter laws 
were the subject of a prolonged and violent con- 
test between the Democratic houses and the Re- 
publican President. The Democrats put great 
stress on the terror and intimidation of the whites 
and the violation of freemen's rights due to the 
presence of federal officials at the polls, and of 
federal troops near them. The RepubHcans in- 
sisted that these officials and troops were essential 
to enable the negroes to vote and to have their 
votes counted. As a matter of fact, neither of 
these contentions was of the highest significance 
so far as the South was concerned. The whites, 
once in control of the state electoral machinery, 
readily devised means of evading or neutralizing the 



TJih UNi)()iN(; Of' k/jjjn:/! KiicjjoN 3O5 

influence of the federal officers. But the patron- 
age in the hands of the administration party under 
these laws was enormous. The power to appoint 
supervisors and deputy marshals at election time 
was a tower of strength, from the standpoint hoth 
of direct votes and of indirect influence. Accord- 
ingly, the attack of the Democrats upon the laws 
was actuated mainly by the purpose of breaking 
down the Republican party organization in the 
South. The attack was successful in Mr. Hayes's 
time only to the extent that no appropriation was 
made for the payment of the supervisors and dep- 
uty marshals for their services in the elections 
of 1880. The system of federal supervision re- 
mained, but gradually lost all significance save as 
a biennial sign that the Republican Party still sur- 
vived ; and when Mr. Cleveland became President 
even this relation to its original character disap- 
peared. 

The P'orce Acts experienced a similar decline 
during the period we are considering. In 1875, 
just before the Republicans lost control of Con- 
gress, they passed, as a sort of memorial to 
Charles Sumner, who had long urged its adoption, 
a Supplementary Civil Rights Hill,^ which made 
criminal, and put under the jurisdiction of the 
federal courts, any denial of equality to negr^>es in 
respect to accommodations in theatres, railway 
cars, hotels, and other such places. This was not 

» 18 .SUtutes at I^rg':, 335. 



366 THE UNDOING OF RECONSTRUCTION 

regarded by the most thoughtful Republicans as a 
very judicious piece of legislation ; but it was per- 
ceived that, with the Democrats about to control 
the House of Representatives, there was not likely 
to be a further opportunity for action in aid of the 
blacks, and so the act was permitted to go through 
and take its chances of good. Already, however, 
the courts had manifested a disposition to question 
the constitutionality of the most drastic provisions 
of the earHer Enforcement Acts. It has been 
said above that indictments under these acts had 
been many, but convictions few. Punishments 
were fewer still ; for skillful counsel were ready to 
test the profound legal questions involved in the 
legislation, and numbers of cases crept slowly up 
on appeal to the Supreme Court. In 1875, this 
tribunal threw out an indictment under which a 
band of whites who had broken up a negro meet- 
ing in Louisiana had been convicted of conspiring 
to prevent negroes from assembHng for lawful pur- 
poses and from carrying arms ; for the right to 
assemble and the right to bear arms, the court de- 
clared, pertained to citizenship of a state, not of 
the United States, and therefore redress for inter- 
ference with these rights must be sought in the 
courts of the state.^ In the same year, in the case 
of United States vs. Reese,^ two sections of the 
Enforcement Act of 1870 were declared unconsti- 
tutional, as involving the exercise by the United 

1 U. S. vs. Cruikshank, 92 U. S., 542. 2 ^2 U. S., 214. 



THE UNDOING OF RECONSTRUCTION 367 

States of powers in excess of those granted by the 
Fifteenth Amendment. It was not, however, till 
1882 that the bottom was taken wholly out of the 
Ku Klux Act. In the case of United States vs. 
Harris 1 the conspiracy clause in its entirety was 
declared unconstitutional. This was a case from 
Tennessee, in which a band of whites had taken 
a negro away from the officers of the law and mal- 
treated him. The court held that, under the last 
three amendments to the constitution. Congress 
was authorized to guarantee equality in civil rights 
against violation by a state through its officers or 
agents, but not against violation by private individ- 
uals. Where assault or murder or other crime 
was committed by a private individual, even if the 
purpose was to deprive citizens of rights on the 
ground of race, the jurisdiction, and the exclusive 
jurisdiction, was in the state courts. And because 
the conspiracy clause brought such offenses into 
the jurisdiction of the United States it was uncon- 
stitutional and void. This decision finally disposed 
of the theory that the failure of a state to protect 
the negroes in their equal rights could be regarded 
as a positive denial of such rights, and hence could 
justify the United States in interfering. It left 
the blacks practically at the mercy of white public 
sentiment in the South. A year later, in 1883, the 
court summarily disposed of the act of 1875 by 
declaring that the rights which it endeavored to 
1 106 U. S., 629. 



368 THE UNDOING OF RECONSTRUCTION 

guarantee were not strictly civil rights at all, but 
rather social rights, and that in either case the 
federal government had nothing to do with them. 
The act was therefore held unconstitutional.^ 

Thus passed the most characteristic features of 
the great system through which the Republicans 
had sought to prevent by normal action of the 
courts, independently of changes in public opinion 
and political majorities, the undoing of reconstruc- 
tion. Side by side with the removal of the pre- 
ventives, the Southern whites had made enormous 
positive advances in the suppression of the other 
race. In a very general way the process in this 
period, as contrasted with the earlier, may be said 
to have rested, in last resort, on legislation and 
fraud rather than on intimidation and force. The 
statute books of the states, especially of those in 
which negro rule had lasted the longest, abounded 
in provisions for partisan — that is, race — advan- 
tage. These were at once devoted as remorse- 
lessly to the extinction of black preponderance as 
they had been before devoted to the repression of 
the whites. Moreover, by revision of the constitu- 
tions and by sweeping modifications of the laws, 
many strongholds of the old regime were destroyed. 
Yet, with all that could be done in this way, the 
fact remained that in many localities the negroes 
so greatly outnumbered the whites as to render 
the political ascendency of the latter impossible, 

1 Civil Rights Cases, 109 U. S. i. 



THE UNDOING OF RECONSTRUCTION 369 

except through some radical changes in the laws 
touching the suffrage and the elections; and in 
respect to these two points the sensitiveness of 
Northern feeling rendered open and decided action 
highly inexpedient. Before 1880 the anticipation, 
and after that year the realization, of a "solid 
South " played a prominent part in national poli- 
tics. The permanence of white dominion in the 
South seemed, in view of the past, to depend as 
much on the exclusion of the RepubUcans from 
power at Washington as on the maintenance of 
white power at the state capitals. Under all the 
circumstances, therefore, extra-legal devices had 
still to be used in the "black belt." 

The state legislation which contributed to con- 
firm white control included many ingenious and 
exaggerated applications of the gerrymander and 
the prescription of various electoral regulations 
that were designedly too intricate for the average 
negro intelligence. In Mississippi appeared the 
"shoestring district," three hundred miles long 
and about twenty wide, including within its bound- 
aries nearly all the densest black communities of 
the state. In South Carolina, the requirement 
that, with eight or more ballot boxes before him, 
the voter must select the proper one for each 
ballot, in order to insure its being counted, fur- 
nished an effective means of neutralizing the igno- 
rant black vote; for though the negroes, unable 
to read the lettering on the boxes, might acquire, 

2B 



370 THE UNDOING OF RECONSTRUCTION 

by proper coaching, the power to discriminate 
among them by their relative positions, a moment's 
work by the whites in transposing the boxes would 
render useless an hour's laborious instruction. For 
the efficient working of this method of suppression, 
it was indispensable, however, that the officers of 
election should be whites. This suggests at once 
the enormous advantage gained by securing con- 
trol of the state government. In the hot days of 
negro supremacy the electoral machinery had been 
ruthlessly used for partisan purposes, and when 
conditions were reversed the practice was by no 
means abandoned. It was, indeed, through their 
exclusive and carefully maintained control of the 
voting and the count that the whites found the 
best opportunities for illegal methods. 

Because of these opportunities the resort to bull- 
dozing and other violence steadily decreased. It 
penetrated gradually to the consciousness of the 
most brutal white politicians that the whipping or 
murder of a negro, no matter for what cause, was 
likely to become at once the occasion of a great 
outcry at the North, while by an unobtrusive ma- 
nipulation of the balloting or the count very encour- 
aging results could be obtained with little or no 
commotion. Hence that long series of practices, 
in the regions where the blacks were numerous, 
that give so grotesque a character to the testimony 
in the contested-election cases in Congress, and to 
the reminiscences of candid Southerners. Polling 



THE UNDOING OF RECONSTRUCTION 371 

places were established at points so remote from 
the densest black communities that a journey of 
from twenty to forty miles was necessary in order 
to vote ; and where the roads were interrupted by 
ferries, the resolute negroes who attempted to 
make the journey were very likely to find the 
boats laid up for repairs. The number of polHng 
places was kept so small as to make rapid voting 
indispensable to a full vote ; and then the whites, 
by challenges and carefully premeditated quarrels 
among themselves, would amuse the blacks and 
consume time, till only enough remained for the 
casting of their own votes. The situation of the 
polls was changed without notice to the negroes, 
or, conversely, the report of a change was indus- 
triously circulated when none had been made. 
Open bribery on a large scale was too common to 
excite comment. One rather ingenious scheme is 
recorded which presents a variation on the old 
theme. In several of the states a poll-tax receipt 
was required as a qualification for voting. In an 
important local election, one faction had assured 
itself of the negro vote by a generous outlay in 
the payment of the tax for a large number of the 
blacks. The other faction, alarmed at the prospect 
of almost certain defeat, availed itself of the oppor- 
tunity presented by the providential advent of a 
circus in the neighborhood, and the posters an- 
nounced that poll-tax receipts would be accepted 
for admission. As a result, the audience at the 



372 THE UNDOING OF RECONSTRUCTION 

circus was notable in respect to numbers, but the 
negro vote at the election was insignificant. 

But exploitation of the poverty, ignorance, cre- 
dulity, and general childishness of the blacks was 
supplemented, on occasion, by deliberate and high- 
handed fraud. Stuffing of the boxes with illegal 
ballots, and manipulation of the figures in making 
the count, were developed into serious arts. At 
the acme of the development undoubtedly stood the 
tissue ballot. There was in those days no pre- 
scription of uniformity in size and general char- 
acter of the ballots. Hence miniature ballots of 
tissue paper were secretly prepared and distributed 
to trusted voters, who, folding as many, sometimes, 
as fifteen of the small tickets within one of the 
ordinary large tickets, passed the whole, without 
detection, into the box. Not till the box was 
opened were the tissue tickets discovered. Then, 
because the number of ballots exceeded the number 
of voters as indicated by the polling list, it became 
necessary, under the law, for the excess to be 
drawn out by a blindfolded man before the count 
began. So some one's eyes were solemnly band- 
aged, and he was set to drawing out ballots, on 
the theory that he could not distinguish those of 
one party from those of the other. The result is 
not hard to guess. In one case given by the 
Senate committee ^ through whose investigation of 

1 The report of this committee is in Sen. Rep. 3d sess., 45th 
Cong., vol. iv. 



THE UNDOING OF RECONSTRUCTION 373 

the elections of 1878, in South Carolina, the theory 
and practice of the tissue ballot were revealed to 
an astonished world, the figures were as follows : — 

Number of ballots in box 1163 

Names on polling list 620 

Excess drawn out c^-j 

Tissue ballots left to be counted .... 464 

Not the least interesting feature of this episode 
was the explanation, given with entire gravity by 
the white committee, of the existence of the great 
mass of tissue ballots. They were prepared, it 
was said, in order to enable the blacks who wished 
to vote the Democratic ticket to do so secretly, and 
thus to escape the ostracism and other social pen- 
alties which would be meted out to them by the 
majority of their race. 

Under the pressure applied by all these various 
methods upon the negroes, the black vote slowly 
disappeared. And with it the Republican Party 
faded into insignificance. In the presidential elec- 
tion of 1884 the total vote in South Carolina 
was, in round numbers, 91,000, as compared with 
182,000 in 1876. In Mississippi the correspond- 
ing decrease was from 164,000 to 120,000; in Loui- 
siana, from 160,000 to 108,000. The Republican 
party organization was maintained almost exclu- 
sively through the holders of federal offices in the 
postal and revenue service. When, in 1885, a Demo- 
cratic administration assumed power, this basis for 



374 ^^-^ UNDOING OF RECONSTRUCTION 

continued existence was very seriously weakened, 
and the decline of the party was much accelerated. 
Save for a few judicial positions held over from 
early appointments, the national offices, like those 
of the states, were hopelessly removed from the 
reach of any Republican's ambition. A compari- 
son of the Congressional delegation from the states 
of the defunct Confederacy in the Forty-first 
Congress (1869-71) with that in the Fifty-first 
(1889-91) is eloquent of the transformation that 
the two decades had wrought: in the former, twenty 
out of the twenty-two Senators were Republican, 
and forty-four out of fifty-eight Representatives; 
in the latter, there were no RepubHcan Senators 
and but three Representatives. 

Summarily, then, it may be said that the second 
period in the undoing of reconstruction ends with 
the political equality of the negroes still recog- 
nized in law, though not in fact, and with the Re- 
publican Party, for all practical purposes, extinct 
in the South. The third period has had for its 
task the termination of equal rights in law as well 
as in fact. 

Ill 

The decline of negro suffrage and of the Re- 
publican Party in the South was the topic of much 
discussion in national politics and figured in the 
party platforms throughout the period from 1876 
to 1888; but owing to the deadlock in the party 



THE UNDOING OF RECONSTRUCTION 375 

control of the national legislature the discussion 
remained academic in character, and the issue was 
supplanted in pubhc interest by the questions of 
tariff, currency and monopoly. By the elections 
of 1888, however, the RepubHcans secured not 
only the presidency, but also a majority in each 
house of Congress. The deadlock of thirteen 
years was broken, and at once an effort was 
made to resume the poHcy of the Enforcement 
Acts. A bill was brought in that was designed to 
make real the federal control of elections. The 
old acts for this purpose were, indeed, still on the 
statute book, but their operation was farcical ; the 
new project, while maintaining the general Hnes 
of the old, would have imposed serious restraints 
on the influences that repressed the negro vote, 
and would have infused some vitality into the 
moribund Republican Party in the South. It was 
quickly demonstrated, however, that the time for 
this procedure had gone by. The bill received 
perfunctory support in the House of Repre- 
sentatives, where it passed by the regular party 
majority, but in the Senate it was rather con- 
temptuously set aside by Republican votes. Pub- 
lic sentiment in the North, outside of Congress, 
manifested considerable hostility to the project, 
and its adoption as a party measure probably 
played a rdle in the tremendous reaction which 
swept the Republicans out of power in the House 
in 1890, and gave to the Democrats in 1892 the 



376 THE UXDOING OF RECONSTRUCTION 

control of both houses of Congress and the 
presidency as well. The response of the Demo- 
crats to the futile project of their adversaries was 
prompt and decisive. In February, 1894, an act 
became law which repealed all existing statutes that 
provided for federal supervision of elections. Thus 
the last vestige disappeared of the system through 
which the political equality of the blacks had re- 
ceived direct support from the national government. 
In the meantime, a process had been instituted 
in the Southern states that has given the most dis- 
tinctive character to the last period in the undoing 
of reconstruction. The generation-long discussions 
of the political conditions in the South have evoked 
a variety of explanations by the whites of the dis- 
appearance of the black vote. These different 
explanations have of course all been current at all 
times since reconstruction was completed, and 
have embodied different degrees of plausibility 
and truth in different places. But it may fairly 
be said that in each of the three periods into which 
the undoing of reconstruction falls one particular 
view has been dominant and characteristic. In 
the first period, that of the Ku Klux and the Mis- 
sissippi plan, it was generally maintained by the 
whites that the black vote was not suppressed, and 
that there was no political motive behind the dis- 
turbances that occurred. The victims of murder, 
bulldozing and other violence were represented as 
bad and socially dangerous men, and their treat- 



THE UNDOING OF RECONSTRUCTION 377 

ment as merely incident to their own illegal and 
violent acts, and expressive of the tendency to 
self-help instead of judicial procedure, which had 
always been manifest in Southern life, and had 
been aggravated by the demoralization of war time. 
After 1877, when the falling off in the RepubHcan 
vote became so conspicuous, the phenomenon was 
explained by the assertion that the negroes had 
seen the light, and had become Democrats. Mr. 
Lamar gravely maintained, in a famous controversy 
with Mr. Blaine,! that the original Republican 
theory as to the educative influence of the ballot 
had been proved correct by the fact that the en- 
franchised race had come to recognize that their 
true interests lay with the Democratic Party ; the 
Republicans were estopped, he contended, by their 
own doctrine from finding fault with the result. 
A corollary of this idea that the negroes were 
Democrats was generally adopted later in the 
period, to the effect that, since there was practi- 
cally no opposition to the Democracy, the negroes 
had lost interest in poHtics. They had got on the 
road to economic prosperity, it was said, and 
were too busy with their farms and their growing 
bank accounts to care for other things. 

Whatever of soundness there may have been in 
any of these explanations, all have been super- 
seded, during the last decade, by another, which, 
starting with the candid avowal that the whites are 

1 North American Review^ vol. 128 (1879), p. 225. 



378 THE UNDOING OF RECONSTRUCTION 

determined to rule, concedes that the elimination 
of the blacks from politics has been effected by 
intimidation, fraud, or any other means, legal or 
illegal, that would promote the desired end. This 
admission has been accompanied by expressions of 
sincere regret that illegal means were necessary, 
and by a general movement toward clothing with 
the forms of law the disfranchisement which has 
been made a fact without them. In 1890, just 
when the RepubHcans in Congress were pushing 
their project for renewing the federal control of 
elections, Mississippi made the first step in the new 
direction. Her constitution was so revised as to 
provide that, to be a quahfied elector, a citizen 
must produce evidence of having paid his taxes 
(including a poll tax) for the past two years, and 
must, in addition, "be able to read any section in 
the constitution of this state, or ... be able to 
understand the same when read to him, or give a 
reasonable interpretation thereof." Much might 
be said in favor of such an alternative intelligence 
qualification in the abstract: the mere ability to 
read is far from conclusive of intellectual capacity. 
But the peculiar form of this particular provision 
was confessedly adopted, not from any considera- 
tion of its abstract excellence, but in order to vest 
in the election officers the power to disfranchise 
illiterate blacks without disfranchising illiterate 
whites. In practice, the white must be stupid 
indeed who cannot satisfy the official demand for a 



THE UNDOING OF RECONSTRUCTION 379 

" reasonable interpretation," while the negro who 
can satisfy it must be a miracle of brilliancy. 

Mississippi's bold and undisguised attack on 
negro suffrage excited much attention. In the 
South it met with practically unanimous approval 
among thoughtful and conscientious men, who had 
been distressed by the false position in which they 
had long been placed. And at the North, public 
opinion, accepting with a certain satirical com- 
placency the confession of the Southerners that 
their earlier explanations of conditions had been 
false, acknowledged in turn that its views as to 
the political capacity of the blacks had been irra- 
tional, and manifested no disposition for a new 
crusade in favor of negro equaUty. The action 
of Mississippi raised certain questions of constitu- 
tional law which had to be tested before her solu- 
tion of the race problem could be regarded as 
final. Like all the other seceded states, save 
Tennessee, she had been readmitted to repre- 
sentation in Congress, after reconstruction, on 
the express condition that her constitution should 
never be so amended as to disfranchise any who 
were entitled to vote under the existing provisions. 
The new amendment was a most explicit violation 
of this condition. Further, so far as the new 
clause could be shown to be directed against the 
negroes as a race, it was in contravention of the 
Fifteenth Amendment. These legal points had 
been elaborately discussed in the state conven- 



380 THE UNDOING OF RECONSTRUCTION 

tion, and the opinion had been adopted that, since 
neither race, color nor previous condition of servi- 
tude was made the basis of discrimination in the 
suffrage, the Fifteenth Amendment had no appli- 
cation, and that the prohibition to modify the 
constitution was entirely beyond the powers of 
Congress, and was therefore void. When the Su- 
preme Court of the United States was required 
to consider the new clause of Mississippi's con- 
stitution, it sustained the validity of the enact- 
ment,^ at least so long as injustice in its 
administration was shown to be possible only and 
not actual. There was still one contingency that 
the whites had to face in carrying out the new 
policy. By the Fourteenth Amendment it is pro- 
vided that if a state restricts the franchise her 
representation in Congress shall be proportion- 
ately reduced. There was a strong sentiment in 
Mississippi, as there is throughout the South, that 
a reduction of representation would not be an in- 
tolerable price to pay for the legitimate extinction 
of negro suffrage. But loss of Congressmen was 
by no means longed for, and the possibility of 
such a thing was very carefully considered. The 
phrasing of the franchise clause may not have 
been actually determined with reference to this 
matter; but it is obvious that the application of 
the Fourteenth Amendment is, to say the least, 
not facilitated by the form used. 

1 Williams vs. Miss., 170 U. S., 213. 



THE UNDOING OF RECONSTRUCTION 38 1 

The action of Mississippi in 1890 throws a 
rather interesting light on the value of political 
prophecy, even when ventured upon by the most 
experienced and able politicians. Eleven years 
earlier, Mr. Blaine, writing of the possibility of 
disfranchisement by educational and property 
tests, declared : " But no Southern state will do 
this, and for two reasons: first, they will in no 
event consent to a reduction of representative 
strength ; and, second, they could not make any 
disfranchisement of the negro that would not at 
the same time disfranchise an immense number of 
whites." How sadly Mr. Blaine misconceived the 
spirit and underrated the ingenuity of the South- 
erners Mississippi made clear to everybody. Five 
years later South Carolina dealt no less unkindly 
with Mr. Lamar, who at the same time with Mr. 
Blaine had dipped a little into prophecy on the 
other side. "Whenever," he said, — "and the 
time is not far distant, — political issues arise 
which divide the white men of the South, the 
negro will divide, too. . . . The white race, di- 
vided politically, will want him to divide." Inci- 
dentally to the conditions which produced the 
Populist Party, the whites of South Carolina, in 
the years succeeding 1890, became divided into 
two intensely hostile factions. The weaker mani- 
fested a purpose to draw on the negroes for sup- 
port, and began to expose some of the devices by 
which the blacks had been prevented from voting. 



382 THE UNDOING OF RECONSTRUCTION 

The situation had arisen which Mr. Lamar had 
foreseen, but the result was as far as possible 
from fulfilling his prediction. Instead of compet- 
ing with its rival for the black vote, the stronger 
faction, headed by Mr. Tillman, promptly took the 
ground that South Carolina must have a " white 
man's government," and put into effect the new 
Mississippi plan. A constitutional amendment 
was adopted in 1895 which applied the "under- 
standing clause " for two years, and after that 
required of every elector either the ability to read 
and write or the ownership of property to the 
amount of $300. In the convention which framed 
this amendment, the sentiment of the whites re- 
vealed very clearly, not only through its content, 
but especially through the frank and emphatic 
form in which it was expressed, that the aspira- 
tions of the negro to equality in political rights 
would never again receive the faintest recognition. 
Since the action of South Carolina, four other 
states, Louisiana in 1898, North Carolina in 1900, 
Alabama (1901) and Virginia (1902), have excluded 
the blacks from the suffrage by analogous constitu- 
tional amendments. By Louisiana, however, a new 
method was devised for exempting the whites from 
the effect of the property and intelligence tests. 
The hereditary principle was introduced into the 
franchise by the provision that the right to vote 
should belong, regardless of education or property, 
to every one whose father or grandfather possessed 



THE UNDOING OF RECONSTRUCTION 383 

the right on January i, 1867. This "grandfather 
clause" was adopted by North CaroHna, also, and, 
in a modified form, by Alabama and Virginia. 
The basis for the hereditary right in the latter 
states has been found, not in the possession of 
the franchise by the ancestor, but in the fact of 
his having served as a soldier of either the United 
States or the Confederacy. As compared with 
the Mississippi device for evading the Fifteenth 
Amendment, the ''grandfather clause" has the 
merit of incorporating the discrimination in favor 
of the whites in the written law rather than re- 
ferring it to the discretion of the election officers. 
Whether the Supreme Court of the United States 
will regard it as equally successful in screening its 
real purpose from judicial cognizance remains to 
be seen. 

With the enactment of these constitutional 
amendments by the various states, the political 
equality of the negro is becoming as extinct in 
law as it has long been in fact, and the undoing 
of reconstruction is nearing completion. The 
many morals that may be drawn from the three 
decades of the process it is not my purpose to 
suggest. A single reflection seems pertinent, how- 
ever, in view of the problems which have assumed 
such prominence in American politics since the 
war with Spain. During the two generations of 
debate and bloodshed over slavery in the United 



384 THE UNDOING OF RECONSTRUCTION 

States, certain of our statesmen consistently held 
that the mere chattel relationship of man to man 
was not the whole of the question at issue. Jeffer- 
son, Clay and Lincoln all saw more serious facts 
in the background. But in the frenzy of the 
war time public opinion fell into the train of the 
emotionalists, and accepted the teachings of Gar- 
rison and Sumner and Phillips and Chase, that 
abolition and negro suffrage would remove the last 
drag on our national progress. Slavery was abol- 
ished, and reconstruction gave the freedmen the 
franchise. 

But with all the guarantees that the source of 
every evil was removed, it became obvious enough 
that the results were not what had been expected. 
Gradually there emerged again the idea of Jeffer- 
son and Clay and Lincoln, which had been hooted 
and hissed into obscurity during the prevalence of 
the abolitionist fever. This was that the ultimate 
root of the trouble in the South had been, not the 
institution of slavery, but the coexistence in one 
society of two races so distinct in characteristics as 
to render coalescence impossible ; that slavery had 
been a modus vivendi through which social life 
was possible ; and that, after its disappearance, 
its place must be taken by some set of conditions 
which, if more humane and beneficent in accidents, 
must in essence express the same fact of racial 
inequality. The progress in the acceptance of 
this idea in the North has measured the progress 



THE UNDOING OF RECONSTRUCTION 385 

in the South of the undoing of reconstruction. In 
view of the questions which have been raised by 
our lately established relations with other races, it 
seems most improbable that the historian will soon, 
or ever, have to record a reversal of the conditions 
which this process has established. 



2C 



INDEX 



Admission of states : Vermont, 
Kentucky, Tennessee, 311 ; Ohio, 
312; Louisiana, 313; Maine, In- 
diana, Illinois, Alabama, Missis- 
sippi, Missouri, 314; Arkansas, 
Michigan, Iowa, 316; Nevada, 
Nebraska, 317 ; Colorado, the 
Dakotas, Montana, Washington, 
Idaho, Wyoming, Utah, 318. 

Alabama, part of third military 
district, 144; registration in, 188; 
disfranchisement in, 196; elec- 
tion on ratification of constitution, 
204; bill to admit representatives 
of, to Congress, 210 ; restored to 
full rights, 215 ; organization of 
legislature in, 217; original ad- 
mission to Union, 314; not equal 
with original states, 350; end of 
negro government in, 360; dis- 
franchisement of negroes in, 382. 

Amendment of the Constitution of 
the United States : proposed by 
Buchanan, 6; submitted by Con- 
gress in 1861, 7; the Fourth, 39; 
the Fifth, 40; the Thirteenth, 56, 
70, 82, 93, 338 ; the Fourteenth, 
116, 118, 120, 122, 222, 225, 336, 
339; the Fifteenth, 227, 232, 243, 
252 ; the first, 341. 

Ames, General, appointed governor 
of Mississippi, 156. 

Amnesty, offered by Lincoln, 66; 
by Johnson, 78 ; not to give right 
to vote in reconstruction, 183. 

Arkansas, military situation in, 64 ; 
government organized in, 69 ; part 



of fourth military district, 144; 
registration in, 188; disfranchise- 
ment in, 196; ratification of con- 
stitution of, 205; act admitting to 
representation, 212; organization 
of legislature in, 217; original 
admission to Union, 316; not 
equal with original states, 350; 
end of negro government in, 360. 
Ashley, Representative, moves im- 
peachment resolution, 255. 

Bates, Attorney-General, opinion 
on suspension of habeas corpus, 
20. 

Black, Attorney-General, opinion 
on suppressing rebellion, 3. 

Blaine, J. G., views on negro dis- 
franchisement, 381. 

Boutwell, Representative, leads in 
impeachment proceedings, 271. 

Buchanan, President, message of 
December, i860, 2, 6; attitude 
toward forts and property in the 
seceded states, 9, 10. 

Bullock, governor of Georgia, 223; 
refuses to call special session of 
legislature, 242; attitude of, on 
final restoration, 246. 

Butler, General B. F., treats slaves 
as contraband, 49 ; introduces bill 
for dealing with Georgia, 239; 
disappointed as to impeachment, 
257 ; leads in impeachment pro- 
ceedings, 271 ; secures adoption 
of article concerning Johnson's 
speeches, 274; on character of 



387 



388 



INDEX 



Senate in impeachment trials, 
280. 

Calhoun, J. C, on sovereignty 
under the Constitution, 5, 

California, not equal with original 
states, 350. 

Canby, Major-General, succeeds 
Sickles in second district, 168 ; 
conducts transition to normal 
relations in Virginia, 233. 

Centralization, 60; in Civil Rights 
Act, 93. 

Chase, Chief Justice, in the Venice, 
72; on opening courts in South 
after the war, 84 ; on Civil Rights 
Act, 96 ; on date of end of war, 
129; on republican form of gov- 
ernment, 133; sits in circuit at 
Raleigh, 167; presides at im- 
peachment of Johnson, 271 ; gives 
casting vote, 283. 

Citizenship, in the Civil Rights 
Act, 97. 

Civil rights, lost by citizens who 
became insurgents, 24; of citi- 
zens in loyal states, 37; freed- 
men to be protected in, 91; in 
Civil Rights Act, 93 ; of negroes, 
protected by Freedmen's Bureau, 
141 ; in Ordinance of 1787, 338. 

Coercion of a state, Buchanan on, 
3; Lincoln on, 11. 

Collamer, Senator, on confiscation, 
29. 

Colorado, admission of, 318 ; not 
equal with original states, 350. 

Commerce, regulation of, 333. 

Conditions on admission of states : 
After reconstruction — Arkansas, 
212; Alabama, North Carolina, 
South Carolina, Georgia, Florida, 
Louisiana, 214; Virginia, 235; 
Mississippi and Texas, 236. At 
original admission to Union, 311- 
319. Classification of, 320; in 



respect to public lands, 328-333 ; 
in respect to navigable waters, 
333; as to interstate rights of 
citizens, 334-336; as to slavery, 
336-338 ; as to civil and religious 
liberty, 338-343 ; as to territorial 
debts, 343 ; as to non-sectarian 
schools, 343 ; as to negro suf- 
frage, 344; as to right to hold 
office, 348 ; as to school privi- 
leges, 349. 
Confiscation, first act, 27; second 
act, 29 ; constitutional warrant 
for, 30 ; international law on, 31 ; 
the President on, 32; of slaves, 

35. 
Congress, in the winter of 1860-61, 
6; on the object of the war, 13; 
non-intercourse act passed, 22 ; 
first Confiscation Act, 27 ; second 
Confiscation Act, 29; Habeas 
Corpus Act, 42 ; . abolition and 
emancipation acts, 53; Enrol- 
ment Act, 55; acts touching state 
status, 67 ; Freedmen's Bureau 
Act, 73 ; appoints joint commit- 
tee on reconstruction, 86; second 
Freedmen's Bureau Bill, 87 ; de- 
clares war on President, 90; 
Civil Rights Act, 91 ; adopts plan 
of restoration, 116 ; declares Ten- 
nessee restored, 120; abandons 
forfeited-rights theory, 122; first 
Reconstruction Act, 123 ; second, 
124; third, 125; on date of end 
of war, 129 ; forbids certain 
punishments of blacks, 147 ; in- 
terprets powers of district com- 
manders as to removals and 
appointments, 154 ; as to state 
laws, 158 ; as to disfranchise- 
ment, 182; Reconstruction Act 
of March 11, 1868, 204; bill to 
restore Alabama, 210; act re- 
storing Arkansas, 212 ; act re- 
storing the Carolinas, Georgia, 



INDEX 



389 



Florida, Alabama, and Louisi- 
ana, 215; members admitted to 
seats, 222; declares Fourteenth 
Amendment in force, 226; pro- 
poses Fifteenth Amendment, 228 ; 
requires removal of certain state 
officers, 229; begins removal of 
disabilities, 229; authorizes sub- 
mission of constitutions in un- 
reconstructed states, 231 ; act 
restoring Virginia, 235 ; acts re- 
storing Mississippi and Texas, 
237 ; act to promote reconstruc- 
tion of Georgia, 242 ; act restor- 
ing Georgia, 246; acts crippling 
executive, 261 ; re-enacts Ordi- 
nance of 1787, 309; acts admit- 
ting states, 311-320; power of, as 
to compacts with states, 321 ; 
as to conditions precedent, 322 ; 
as to conditions subsequent, 
323 ; passes Enforcement Acts 
and Election Laws, 357-359; 
party deadlock in, 364 ; passes 
supplementary Civil Rights Act, 
365 , repeals Federal Elections 
Laws, 376. 

Conservative Party in South, 200. 

Crittenden, Senator, proposition 
for compromise, 7. 

Dakotas, the, admission of, 318 ; 
not equal with original states, 

350- 

Davis, Henry Winter, on restora- 
tion of states, 68. 

Declaration of Independence, 15. 

Delegated powers, principle of, 56. 

Democratic Party, in South after 
war, 200 ; success of, in elections 
of 1892, 375. 

Dictatorship of President in 1861, 
21. 

Disabilities, political, removed in 
1872, 360. 

Disfranchisement of negroes, in 



Mississippi, 378; in South Caro- 
lina and other states, 382. 

Disfranchisement of rebels, in Ten- 
nessee, 120; by Reconstruction 
Acts, 124, 176; interpretation of 
provisions touching, 179; in 
constitutions alter reconstruction, 
196; effect of, in Mississippi and 
Virginia, 230. 

District commanders, duties of, 
143; assignments of, 144; difiti- 
culties of position, 145 ; relation 
to state officials, 148 ; policy of, 
in removal and appointment of 
state officers, 151 ; relation to 
I state laws, 156; policy of, as to 
military commissions and jury 
system, 159; as to criminal law 
and police, 162; as to private 
law, 163; as to state finances, 
170; general judgment on, 174; 
practice of, in appointing regis- 
tration officers, 184; in conduct- 
ing elections, 190; as to freedom 
of speech, 192; relations with 
conventions, 194; conduct of 
elections on ratifying constitu- 
tions, 201 ; policy in transition 
from military to permanent gov- 
ernments, 218-222, 233. 

District of Columbia, taxation of 
citizens of, 335. 

Drafts of 1862, 38. 

Due process of law, meaning of, 
340. 

Elections, of 1862, 40 ; of 1866, 121, 
123, 254; forbidden in South by 
military commanders, 147; of 
1867, 190; under Reconstruction 
Acts, 188, 204-206; of 1868, 226; 
in Virginia, Mississippi, and 
Texas, 232; of 1872, 360; of 
1876, 362; of 1888, 375; of 1892, 
375. See also Federal Elections 
Laws. 



390 



INDEX 



Emancipation, in second session, 
Thirty-seventh Congress, 28 ; by 
the President, 50; by Congress, 

54- 

Emory, Major-General, connection 
of, with impeachment of John- 
son, 272. 
|[^/^nforcement Acts, aim of, 357 ; 
content and operation of, 358- 
359 ; judgment of Supreme Court 
on, 366-367. 

Enfranchisement of negroes, aimed 
at by radicals, 80; progress 
toward, in Fourteenth Amend- 
ment, 118; secured in Tennes- 
see, 120; insured in South by 
Reconstruction Acts, 124, 176 ; 
defeated in Ohio, 190; incorpo- 
rated in reconstruction constitu- 
tions, 196; defeated in certain 
Northern states, 227 ; why 
adopted as a policy, 251. 

Equality of states, germ of doctrine, 
306; in constitutional conven- 
tion, 310; in admitting acts, 311 ; 
in debate on admission of Mis- 
souri, 315; how affected by 
conditions on admission, 320; 
contradictory theories as to con- 
stitution on, 325-327; in respect 
to public lands, 333 ; in respect 
to navigable waters, 334 ; in re- 
spect to taxation of non-residents, 
336 ; in respect to slavery, 338 ; 
in respect to civil liberty, 341 ; 
religious liberty, 342; as to ter- 
ritorial debts, 343; as to public 
schools, 344 ; as to negro suffrage, 
345. 347 ; ^s to right to hold 
office, 348 ; as to school privi- 
leges of citizens, 349; not sus- 
tainable in constitutional law, 351. 

Federal Elections Laws : aim and 
content of, 356, 359 ; contest over, 
under Hayes, 364-365 ; attempt to 



revive in 1889, 375 ; repeal of, 
376. 

Federalist, The, on the guarantee 
clause, 131. 

Florida, part of third military dis- 
trict, 144; registration in, 188; 
ratification of constitution in, 205 ; 
restored to full rights, 214; not 
equal with original states, 350; 
end of radical government in, 
362. 

Force Acts : see Enforcement Acts. 

Fraud in elections : a deliberate 
policy in South, 368 ; methods of, 
369-373 ; Southern confessions 
of, 378. 

Freedmen, status of, at end of war, 
73; enfranchisement of, desired, 
80; legislation concerning, by 
Southern states, 92; included in 
United States citizenship, 97 ; 
given the electoral franchise, 124 ; 
outrages on, 128, 139; complaints 
against employers, 142; peculiar 
punishments of, forbidden, 147; 
join the Republican Party, 201 ; 
political tendencies of, 355 ; 
failure of, as militia, 357. 

Freedmen's Bureau, establishment 
of, 73; second bill concerning, 
87; reports of officials of, in 
1866, 139 ; judicial authority of, 
141 ; political influence of, 200. 

Fremont, General, 49. 

Georgia, part of third military dis- 
trict, 144; Governor Jenkins re- 
moved, 155 ; registration in, 188 ; 
disfranchisements in, 189; ratifi- 
cation of constitution in, 205; 
act restoring to full rights, 214 ; 
Governor Bullock and the legisla- 
ture, 223 ; legislature unseats ne- 
! gro members, 224; senators not 
I admitted to seats, 224; in presi- 
1 dential election of 1868, 226 ; 



INDEX 



391 



status of, in December, 1868, 
237 ; congressmen excluded from 
House, 239 ; state supreme court 
decides negroes eligible to legis- 
lature, 241 ; General Terry on 
outrages in, 242 ; act to promote 
reconstruction of, 242 ; proceed- 
ings under the act, 244; final 
restoration of, 246 ; not equal 
with other original states, 350; 
lost by Republicans, 356. 

Gillem, Major-General, commander 
in fourth district, 169 ; vetoes con- 
vention's tax ordinance in Missis- 
sippi, 174; conduct of election 
in Arkansas, 205, 211. 

Grant, general of the army, powers 
under the Reconstruction Acts, 
125 ; attitude on Congressional 
policy, 145 ; on Sickles' policy, 
167 ; elected President, 226 ; policy 
as to unreconstructed states, 231 ; 
in restoration of Virginia, 233; 
recommends additional legisla- 
tion as to Georgia, 242; ap- 
pointed secretary of war ad 
interim, 263 ; controversy with 
Johnson, 265 ; suppresses Ku 
Klux in South Carolina, 359 ; 
refuses troops to Mississippi, 361. 

Habeas corpus, suspended between 
Philadelphia and Washington, 
19; suspended in connection 
with draft, 39; interpretation of 
Constitution on, 41 ; act of 1863 
touching, 42; general suspen- 
sion of, 43 ; extension of juris- 
diction of Supreme Court as to, 
137 ; suspension of, authorized 
by Ku Klux Act, 359. 

Hancock, Major-General, com- 
mander in fifth district, 160; 
policy of, 161 ; on relief of 
debtors, 169. 

Hayes, President R. B. : abandons 



radicals in South, 363 ; strife with 
Congress over Federal Elections 
Laws, 364. 

Hoar, Attorney-General, opinion 
on test oath, 233. 

Howard, General, on administra- 
tion of justice in South in 1866, 
140. 

Humphreys, governor of Missis- 
sippi, removed, 156. 

Hunter, General, 49. 

Illinois, admission of, 314; not 
equal with original states, 350. 

Impeachable offences, what consti- 
tute, 258, 275, 278, 283. 

Impeachment of President John- 
son, moved, 255 ; reported 
against, 256, 257; voted down, 
260 ; second attempt at, 265 ; 
voted by House, 270; trial be- 
gins, 271; the charges, 272; 
Johnson's answer, 276 ; decision 
of Senate that it was a court, 
283 ; decision as to impeachable 
offences, 283; the issue as to 
power of removal, 284 ; as to 
President's right to violate law, 
288 ; as to construction of pro- 
viso touching cabinet officers, 
293; as to ad interim appoint- 
ment of Thomas, 297 ; end of 
trial, 299 ; votes on articles, 300- 
301 ; judgment on, 302. 

Indiana, admission of, 314; not 
equal with original states, 350. 

Intimidation, methods of in South, 
361 ; Southern confession of, 378. 

Iowa, admission of, 316 ; not equal 
with original states, 350. 

Iron-clad oath, required of ap- 
pointees under military govern- 
ment, 154; of jurors in Texas, 
160; of members of registration 
boards, 184; of officers in Vir- 
ginia, 197 ; question as to, in 



392 



INDEX 



transition from military to per- 
manent government, 219; re- 
quired of state officers, 229; in 
transition of Virginia to full 
rights, 233. 

Jenkins, governor of Georgia, re- 
lations with General Pope, 152; 
removed, 155. 

Johnson, Andrew, organizes gov- 
ernment in Tennessee, 78 ; ap- 
plies Lincoln's plan of restoration, 
78; with modifications, 79; an- 
nounces success of restoration, 
82; and suppression of rebellion, 
83 ; policy opposed by various 
elements, 85 ; vetoes Freedmen's 
Bureau Bill, 89; rupture with 
Congress, 90, 253 ; impeachment 
of, moved, 255; suspends Stan- 
ton, 262 ; controversy with Grant, 
265 ; removes Stanton, 268 ; im- 
peached by House, 270 ; charges 
against, 272 ; answer to charges, 
276; view of proviso in Tenure 
of Office Act, 295; acquitted, 
300 ; appoints Schofield secretary 
of war, 302. 

Kansas, not equal with original 

states, 350. 
Ku Klux Klan, 228; in Georgia, 

242; political influence of, 356; 

act for suppression of, 358, 367 ; 

summary procedure against in 

South Carolina, 359. 

Lamar, L. Q. C, views on negro 
suffi-age, 377, 381. 

Lincoln, President, inaugural ad- 
dress of, 1861, 11; calls out mili- 
tia, 16; proclaims blockade, 17; 
calls for volunteers and increases 
army and navy, 18 ; authorizes 
suspension of habeas corpus, 19 ; 
proclamation in connection with 
draft, 38; suspends habeas cor- 



pus generally, 43 ; Emancipation 
Proclamation, 50; amnesty and 
restoration proclamation, 66 ; 
action on Wade-Davis bill, 68; 
death of, 78. 

Louisiana, government organized 
in, 69; condition of, in 1866, 140; 
part of fifth military district, 144 ; 
removals and appointments in, 
153; registration in, 188; disfran- 
chisement in, 197 ; ratification of 
constitution in, 205; act restor- 
ing, 214 ; difficulty in transition 
from military government 220; 
presidential election of 1868, 226 ; 
original admission to Union, 313 ; 
not equal with original states, 
350; incidents of radical govern- 
ment in, 361 ; end of radical 
government in, 362 ; disfranchise- 
ment of negroes in, 382, 

Loyalists in the South, 65. 

Loyalty, test of, in Johnson's am- 
nesty proclamation, 80; in re- 
construction, 150; in members 
of registration boards, 184. 

Madison, James, on sovereignty 
under the Constitution, 5 ; on Or- 
dinance of 1787, 309. 

Martial law, proclaimed as to cer- 
tain persons, 39 ; Supreme Court 
on, 45. 

Meade, Major-General, com- 
mander of third military district, 
155 ; action for relief of debtors, 
170; declines to "purge" Geor- 
gia legislature, 223. 

Michigan, admission of, 316; 
boundary dispute of, with Ohio, 
333; not equal with original 
states, 350. 

Military commissions, authorized 
in connection with draft, 39; 
Supreme Court on, 45; estab- 
lished during reconstruction, 158. 



INDEX 



393 



Military government in reconstruc- 
tion, constitutional basis of, 127 ; 
practical purpose of, 139 ; ended 
in Arkansas, 213; ended in six 
states, 222 ; ended in Virginia, 
236, in Mississippi and Texas, 
237 ; renewed in Georgia, 244. 

Militia, law of 1795 on, 3, 16. 

Minnesota, not equal with original 
states, 350. 

Mississippi, administration of jus- 
tice in, in 1866-67, 139 ; part of 
fourth military district, 144 ; con- 
vention's action on taxes, 174; 
registration in, 188 ; disfranchise- 
ment in, 196; rejection of consti- 
tution in, 206; removal of state 
officers required, 229 ; ratification 
of constitution, 233; restored to 
full rights, 237; original admis- 
sion to Union, 314 ; amends con- 
stitution as to suffrage, 347 ; not 
equal with original states, 350; 
overthrow of radical government 
in, 361 ; shoe-string district in, 
369 ; disfranchisement of negroes 
in, 378 ; new franchise clause sus- 
tained by United States Supreme 
Court, 380. 

Montana, admission of, 318 ; not 
equal with original states, 350. 

Morris, Gouverneur, opposes 
equality of new states, 310, 324. 

Municipal governments in South 
during reconstruction, 156. 

Nebraska, admission of, 317 ; pro- 
hibited to deny negro suffrage, 
345; not equal with original 
states, 350. 

Necessity, doctrine of, 58. 

Nevada, admission of, 317; no 
slavery in, 338 ; not equal with 
original states, 350. 

North Carolina, part of second 
military district, 144 ; registration 



in, 188; disfranchisements in, 
189; ratification of constitution 
in, 205; act restoring, 214; ces- 
sion of Tennessee, 311; not equal 
with original states, 350 ; lost by 
Republicans, 356; disfranchise- 
ment of negroes in, 382. 
Northwest Territory, ceded to 
United States, 307; prohibition 
of slavery in states formed from, 
337- 

Ohio, admission of, 312; dispute 
with Michigan, 333 ; no slavery 
in. 337; not equal with original 
states, 360. 

Ord, Major-General, commander 
of fourth military district, 144; 
order of, as to illicit stills, 162; 
as to relief of debtors, 169. 

Ordinance of 1787, adopted, 308; 
re-enacted, 309; as to Michigan's 
boundary, 333; as to slavery, 
337; as to civil and religious 
liberty, 338-342. 

Oregon, not equal with original 
states, 350. 

Pickering, Secretary of State, re- 
moved by President Adams, 286. 

Pope, Major-General, commander 
third military district, 144 ; policy 
as to removals and appointments, 
152 ; as to jury system, 159 ; as to 
relief of debtors, 169 ; as to regis- 
tration boards, 185 ; as to printing 
patronage, 192 ; as to elections on 
ratifying constitutions, 202; su- 
perseded, 202. 

Prisoners of state, 38. 

Privateers, Confederate, treatment 
of, 26. 

Proclamation of the President, 
calling out the militia, 16 ; estab- 
lishing blockade, 17; defining 
limits of insurrection, 23 ; declar- 



394 



INDEX 



ing martial law, 38 ; suspending 
habeas corpus, 43 ; Emancipation, 
50 ; amnesty and restoration, Lin- 
coln, 66, Johnson, 78 ; blockade, 
non-intercourse and suspension 
oi habeas corpus revoked, 83 ; end 
of insurrection, and general 
peace, 83. 
Provisional governors, appointed 
by Johnson, 79; character and 
authority of, 113. 

Radical Party in South, 200. 

Rebel states, meaning of the ex- 
pression, 126. 

Reconstruction, joint committee 
on, 86; theories as to, 100; 
Southern theory, loi ; Presiden- 
tial theory, 103 ; state-suicide 
theory, 105, 122; conquered- 
province theory, 107 ; forfeited- 
rights theory, 109, 122 ; report of 
joint committee on, 112; acts of 
March and July, 1867, 123-125 ; 
principles of these acts, 126-134 ; 
attempts to overthrow the acts 
judicially, 136; purpose of the 
acts, 138 ; interpretation of acts 
as to removals and appointments, 
153; as to state legislation, 156; 
provisions as to enfranchisement 
and disfranchisement, 177 ; inter- 
pretation as to disfranchisement, 
182; first elections under, 188; 
state conventions held, 193, 207; 
constitutions voted on, 204-206; 
states admitted to representation, 
212, 215, 235, 237 ; transition from 
provisional to permanent govern- 
ments, 216, 236, 237; epoch in 
process of, 225 ; act to promote, 
in Georgia, 242; proceedings 
under last act, 244; act finally 
restoring Georgia, 246; general 
reflections on process of, 247- 
252, 353 ; conditions on states in. 



319 ; what is involved in undoing 
of. 354". periods in undoing of, 
363. 374- 

Registration boards, duties of, as 
to disfranchisement, 182; quali- 
fications of members of, 184; 
negroes made members, 185 ; 
influence on Republican Party, 
186 ; results of their registration, 
188. 

Removal from office, discussion as 
to power of, 284. 

Republican form of government, 
guarantee of, construed, 131-134 ; 
question as to, in Georgia, 240. 

Republican Party, control of Con- 
gress in 1861, 21 ; continuance of 
supremacy aimed at, 86, 353 ; de- 
velopment in South, 186, 199; 
change of attitude on negro 
suffrage, 226; split in unrecon- 
structed states, 230, 360; deteri- 
oration of, in the South, 355 ; 
extinction of, in South, 373. 

Restoration of governments in the 
South: Lincoln's plan, 66, 76; 
Wade-Davis plan, 68 ; in Louisi- 
ana and Arkansas, 69, tj; in 
Tennessee, 78; Johnson's plan, 
79 ; criticised, 86 ; plan of Thirty- 
ninth Congress, 116. 

Schofield, Major-General, com- 
mander first military district, 
144 ; practice as to appointments 
and removals, 151; opposes 
"clean sweep" of officials, 155; 
attitude on jury system, 159; in 
selection of registration boards, 
184 ; in conducting election, 190 ; 
appointed secretary of war, 302. 

Secession, right of, Buchanan's 
message on, 2; Lincoln on, 11; 
extinction of, 62. 

Separation of powers, 56, 

Seward, Secretary of State, pro- 



INDEX 



395 



claims Thirteenth Amendment, 
82; abuse of, 117; proclaims 
Fourteenth Amendment, 225. 

Sheridan, Major-General, on con- 
ditions in Louisiana and Texas 
in 1866, 140; commander fifth 
military district, 144 ; practice as 
to removals and appointments, 
153; abolishes levee board, 
163. 

Sherman, Senator, on Tenure of 
Office Act, 294. 

Sherman-Johnston agreement, 102. 

Shoe-string district, 369. 

Sickles, Major-General, on admin- 
istration of justice in South Caro- 
lina in 1866, 140; commander 
second military district, 144 ; 
practice as to removals and ap- 
pointments, 151 ; as to jury sys- 
tem, 159; as to criminal law and 
police, 162 ; General Orders No. 
10 for relief of debtors, etc., 164 ; 
conflict with federal court, 167; 
removed, 168. 

Slavery, Crittenden compromise 
on, 8 ; abolished in District of 
Columbia and territories, 53; 
meaning of, in Thirteenth 
Amendment, 93; in Ordinance 
of 1787, 309, 337. 

Slaves, set free under Confiscation 
Acts, 35 ; contraband of war, 36, 
49 ; emancipated by generals, 49 ; 
emancipated by President, 50; 
by Congress, 54. 

South Carolina, evades repudiating 
war debt, 82 ; administration of 
justice in, in 1866-67, 14° '. P^-^^ 
of second military district, 144 ; 
registration in, 188 ; disfranchise- 
ments in, 189 ; ratification of con- 
stitution in, 205 ; act restoring, 
214; amends constitution as to 
suffrage, 347 ; not equal with 
other original states, 350; radical 



government in, 361; ballot-box 
law in, 369 ; tissue ballots in, 373 ; 
disfranchisement of negroes in, 
382. 

Sovereignty, national, Lincoln on, 
12. 

Sovereignty, state, Buchanan on, 
2; Lincoln on, n; extinction of, 
62, 304. 

Stanbery, Attorney-General, inter- 
pretation of Reconstruction Acts, 
125; disapproves policy of dis- 
trict commanders, 148; opinion 
on removals and appointments, 
153 ; on legislative power of dis- 
trict commanders, 158 ; on 
Sickles's General Orders No. 10, 
167 ; on disft-anchising clauses of 
Reconstruction Acts, 180. 

Stanton, Secretary of War, disap- 
proves Johnson's reconstruction 
policy, 261 ; suspended from 
office, 262; resumes office, 264; 
removed by Johnson, 268; opin- 
ion on Tenure of Office Act, 295 ; 
relinquishes office, 301. 

State, definition of, by Supreme 
Court, loi. 

State rights, to be unimpaired by 
the war, 13 ; definition of, in re- 
construction, 63; effect of the 
war on, 304. 

Stevens, Thaddeus, theory as to 
reconstruction, 107 ; moves bills 
for restoring Alabama, 210, 213 ; 
disappointed as to impeachment, 
256 ; leader in impeachment pro- 
ceedings, 271. 

Sumner, Charles, theory as to re- 
construction, 105 ; on republi- 
can form of government, 134; 
motion in impeachment trial, 
283; advocates supplementary 
Civil Rights Bill, 365. 

Supreme Court of the United 
States, decisions of: Prize Cases, 



39^ 



INDEX 



17, 25, 71 ; Ex parte Milligan, 45 ; 
The Venice, 72 ; Ex parte Qwm.- 
mings and Ex parte Garland, 
121 ; as to when war ended, 129; 
Texas vs. White, 133 ; Mississippi 
vs. Johnson, 136 ; Georgia vs. 
Stanton, 136 ; £'jr/'ar/<f McCardle, 
137 ; McCulIough vs. Maryland, 
329 ; Van Brocklin vs. Tennessee, 
330; Green vs. Biddle, 331 ; Pol- 
lard's Lessee vs. Hagan, 333; 
Withers t/J. Buckley, 334; Gilman 
vs. Philadelphia, 334 ; Ward, vs. 
Maryland, 335 ; Slaughter House 
Cases, 339; United States vs. 
Cruikshank, 342, 366; United 
States vs. Reese, 366; United 
States vs. Harris, 367; Civil 
Rights Cases, 368 ; Williams vs. 
Mississippi, 380. 

Taney, Chief Justice, on the sus- 
pension of habeas corpus by the 
President, 19. 

Tennessee, government restored, 
78 ; representatives and senators 
admitted to Congress, 120; ad- 
mission to Union, 311 ; lost by 
Republicans, 356. 

Tenure of Office Act, passed, 261 ; 
relation to Stanton, 264-266 ; held 
void by President, 277; proviso 
in, touching cabinet officers, 294 ; 
repealed, 303. 

Terry, Major-General, reports on 
conditions in Georgia, 242 ; con- 
ducts re-reconstruction, 244. 

Texas, condition of, in 1866, 140; 
part of fifth military district, 144; 
governor removed, 155 ; registra- 
tion in, 188 ; disfranchisement in, 
196; recess of convention, 208; 
removal of state officers required, 
229 ; constitution completed, 230, 
ratified, 233 ; restored to full 
rights, 237 ; not equal with origi- 



nal states, 351 ; lost by Republi- 
cans, 356. 

Thomas, Lorenzo, Adjutant-Gen- 
eral, appointed secretary of war 
ad interim, 268. 

Tillman, of South Carolina, 382. 

Treason, attainder of, 33. 

Trumbull, Senator, on govern- 
ment's rights over rebels, 34; 
on Freedmen's Bureau Bill, 88 ; 
on impeachment of Johnson, 
300. 

Union, preservation of, the object 

of the war, 13. 
Utah, admission of, 318 ; law as to 

polygamy in, 342 ; not equal with 

the original states, 350. 

Virginia, consents to formation of 
West Virginia, 67 : Pierpoint 
government of, recognized, 78 ; 
made first military district, 144; 
removals and appointments in, 
151 ; registration in, 188 ; disfran- 
chisements in, 189 ; disfranchise- 
ment clause of constitution, 196; 
delay in ratification, 207 ; removal 
of state officers required, 229 ; 
constitution ratified, 233 ; re- 
stored to full rights, 235 ; cedes 
Northwest Territory, 307 ; cedes 
Kentucky, 311 ; not equal with 
other original states, 350 ; lost by 
Republicans, 356 ; disfranchise- 
ment of negroes in, 382. 

Wade, Senator, on restoration of 
states, 68 ; next in succession to 
presidency, 255 ; disliked by 
Eastern men, 260. 

War powers, basis of, 15; as to 
confiscation, 32 ; as to civil rights 
in loyal states, 37; as to the 
slaves, 49 ; principles and tenden- 
cies of, 56 ; basis of Freedmen's 



f 



INDEX 



397 



Bureau, 74 ; basis of Reconstruc- 
tion Acts, 128. 

Washington, admission of, 318 ; not 
equal with the original states, 350. 

Webster, Daniel, on sovereignty 
under the Constitution, 5 ; on the 
guarantee clause, 132. 



West Virginia, creation of, 67, 

Whiskey Insurrection, 15. 

Wilson, Representative, on im- 
peachable offences, 275. 

Wisconsin, not equal with original 
states, 350. 



3i|.77-2 



